KNOX COUNTY ISSUES SAFER AT HOME ORDER

Today Knox County Mayor Glenn Jacobs issued a ‘Safer At Home” Order.  The Order takes effect at 12:01 a.m.  on Tuesday March 24th and will last for two weeks.  During that time only “essential businesses” may operate.  The County has promised that a list of essential services will be on its website http://www.knoxcounty.org. Once I have the Order I will publish more details about what is an essential business and other details.  Stay tuned!

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Emergency FMLA and Paid Sick Leave- What Employers Need To Know

On March 18th President Trump signed the Families First Coronavirus Response Act.  This new law requires certain employers to provide emergency limited paid and unpaid leave under the FMLA and emergency paid sick leave in certain limited circumstances.   Some of the highlights are discussed below.

Beginning and End Date: Both the expanded FMLA and the emergency paid sick leave provisions  take effect on April 2, 2020 and expire on December 31, 2020.

What Employers Are Covered?  Both provisions apply to all employers with fewer than 500 employees, including public agencies.  Both allow employers of an employee who is a healthcare provider or an emergency responder to elect to exclude the employee from these two provisions. Both also allow subsequent Department of Labor regulations to exempt small businesses with fewer than 50 employees if applying these provisions would jeopardize the viability of the business.

Who Is Eligible?  Under the FMLA provision both full and part-time employees who have been on the employer’s payroll for 30 days are eligible.  But the paid sick leave provision applies to all employees, regardless of length of service.

What reason qualifies for the FMLA expansion? This is limited to an employee who cannot work or telework due to the need to care for the employee’s minor son or daughter if the minor child’s school or place of childcare has been closed, or the childcare provider is unavailable due to a “public health emergency” with respect to COVID-19 declared by a federal, state or local authority. Basically, it is “caregiver leave”.

Is any of this expanded FMLA leave paid?  Yes.  The first 10 days (two weeks) are unpaid, but an employee can substitute accrued paid leave, including the new emergency paid sick leave. The remaining leave ( a maximum of 10 weeks,  as the total available is still 12 weeks) is paid at 2/3 of the employee’s regular rate, for the number of hours the employee would be otherwise scheduled to work.  This pay is capped at $200 a day and $10,000 total.

Is expanded FMLA leave job protected? Yes, the employee must be restored to the same or equivalent position.  However, there is an exception for employers with less than 25 employees, if the employee’s position no longer exists due to operational changes related to the public health emergency, such as a reduction in force or restructuring because of a downturn in business.

What qualifies for emergency paid sick leave? The inability to work or telework due to any of the following:

  1. The employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health-care provider to self-quarantine because of COVID-19;
  3. The employee is experiencing symptoms of (you guessed it) COVID-19 and is seeking a medical diagnosis;
  4. The employee is caring for an individual ( note, NOT a family member) subject to a quarantine or isolation order, or advised to quarantine or isolation;
  5. The employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions;or
  6. The employee is experiencing any other substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor ( a catch-all!)

How much emergency paid sick leave is required? 80 hours maximum, but available immediately, so no accrual requirement.   Paid at the regular rate of pay for reasons 1-3 above (employee is sick), with a maximum of $511 a day and $5,110 in total.  For reasons 4-6 above (caregiver reasons) it is paid at 2/3 the regular rate of pay, with a maximum of $200 a day and $2,000 in total.

Can I require  employees to use paid leave under an existing policy before using this new emergency paid leave? No. The emergency paid leave is supplemental.

Does the unused emergency sick leave carryover ? No, the unused leave does not carryover to the next year.  It also does not have to be paid upon termination under this law, but your state law might require it to be paid, so check that before you make a final decision.  Under current Tennessee law, so long as you state in the policy that it will not be paid upon termination you do not have to pay it.

Do I get a tax break? Potentially under both the expanded FMLA and the emergency sick leave provisions.   Talk with one of the lawyers at my firm who does tax law, or your accountant.

Of course, you cannot retaliate against an employee for exercising his or her rights under these new laws. You will also have to post a Notice detailing these laws, and the Department of Labor is  in the process of drafting that Notice.

There are a lot of issues and open questions with these sweeping changes.  If we can help you to further navigate these uncharted waters please give us a call.

 

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Coronavirus Concerns For Employers

Coronavirus concerns are international.  Universities are cancelling in-person classes.  Professional and collegiate sporting events are being cancelled.  Travel bans are in place.  In New York state, the National Guard was deployed in an effort to create a “containment zone” in New Rochelle.  But what can employers do when faced with issues created by the Coronavirus?

The EEOC weighed in on this issue last week, and provided some helpful guidance on how employers can manage Coronavirus concerns and still comply with the ADA.   I have summarized the EEOC’s answers to 3 key questions below.

In an effort to protect their workforce, how much information may an employer request from an employee who calls in sick?

The EEOC stated that ADA-covered employers may ask the employees if they are experiencing flu-like symptoms, such as fever or chills and a cough or sore throat.  This information must be maintained by the employer in a  confidential medical record in compliance with the ADA.  Furthermore, the EEOC stated that these inquiries are not disability related if Coronavirus is like the seasonal flu.  And, if the Coronavirus becomes more severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of Coronavirus poses a direct threat to the health and safety of other employees. 

Does the ADA allow employers to require employees to stay home if they have Coronavirus symptoms?

Yes.  Employees who become ill at work with flu-like symptoms should leave work and advising them to do so is not a disability-related action.  And, sending them home would be permitted if the illness were more severe, as the individual would pose a direct threat to the health and safety of others. 

While not addressed by the EEOC, sending an employee who has a severe case of Coronavirus home may be required under OSHA’s “General Duty Clause”, which requires employers to furnish a “place of employment … free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.”

The EEOC also confirmed that the  ADA allows employers to require a doctor’s note certifying the employee’s fitness for duty when returning to work.  Again, this is not a disability-related inquiry, and if the illness is severe, the inquiry would still be justified to avoid a direct threat.

The EEOC’s Guidance does not address whether an employee who is sent home must be paid, because that is not one of the laws the EEOC enforces. That answer depends on whether any work is performed and whether the employee is non-exempt or exempt under the FLSA.

Hourly employees are only paid for hours worked, so if an employee will be working from home he or she must be paid for the actual time worked.  If the hourly employee will not be working from home, he or she gets no pay while out of work.  An employer can allow the employee to use accrued PTO or sick leave. Salaried, exempt employees must be paid their normal weekly salary if the employee performs any work that week.

The Coronavirus is definitely cause for concern.  Employers who act responsibly and in accordance with the EEOC and other guidance, don’t have to add employment law concerns to the list.

 

 

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NLRB Delivers Some Holiday Gifts To Employers

It may or may not be due to “being in the Holiday Spirit” but last week the NLRB issued two ruling which are nice gifts to employers.

 

First, in Apogee Retail, the NLRB approved greater confidentiality in workplace investigations.  In doing so the NLRB determined that “investigative confidentiality rules limited to the duration of the investigation are generally lawful”.  This means that employers can insist that persons interviewed during a workplace investigation not discuss the substance of the investigation with others and not run afoul of the NLRA by making this request.   In reaching this decision the Board rejected the rationale of the 2015 decision Banner Estrella Medical Center, holding that the Banner Estrella decision ‘improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights”.

 

Second, the Board reversed Purple Communications, Inc. and held that an employer has the right to restrict employee use of its email system to business purposes.  Thus, so long as employers are not allowing some non-business use and not others, employers can successfully prevent usage of their email systems for the purpose of organizing a union.  The decision, known as Caesars Entertainment Corp.,  adds an exception letting workers use company email for union organizing when it’s “the only reasonable means for employees to communicate with one another”.

 

Happy Holidays!

 

 

Avoid A Halloween Nightmare- Investigate That Complaint!

Today is Halloween.  Celebrate if you choose, but don’t let today, or another day, turn into a nightmare at work by failing to investigate a complaint of harassment, discrimination, or other alleged misconduct.

Follow these steps when you receive a complaint at work:

  1. Investigate everything.  No matter how minor or major the complaint may seem, investigate it.
  2. Investigate promptly.  Same day is ideal. If that is not possible, begin the investigation as soon thereafter as possible.
  3. Investigate thoroughly. Leave no stone unturned.  Interview all witnesses.  Review all documents (emails and text messages are often where key information will be found), photographs, videos and any other tangible items.
  4. Use the who, what, when , why, how method of questioning to obtain the information you need. Start broadly and then focus on the specific.
  5. Make sure the investigator is unbiased and knowledgeable about the process.  HR or Risk Management/Compliance are typically an excellent choice to handle the investigation.  If that is not an option consider retaining outside counsel to do so.
  6. After the investigation is complete share the conclusions/findings  with the complainant and take appropriate corrective action promptly.

If you follow these steps you can avoid turning a work complaint into a nightmare, on Halloween or any other day.

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U.S. Department of Labor Issues Final Overtime Rule

In March 2019, the U.S. Department of Labor (“DOL”) announced a Notice of Proposed Rulemaking that, if passed, would increase the minimum salary thresholds to qualify for the Executive, Administrative, and Professional Exemptions, often referred to as the “white collar exemptions.”  Following public comments and listening sessions on the proposal, the DOL has issued a Final Overtime Rule.  Although announced on September 24, 2019, the Final Overtime Rule will not take effect until January 1, 2020.

The Final Overtime Rule updates the standard salary thresholds necessary to exempt Executive, Administrative, or Professional employees from the minimum wage and overtime requirements set forth in the Fair Labor Standards Act (“FLSA”) by:

  • raising the “standard salary level” from the currently enforced level of $455 per week to $684 per week (which is equivalent to an annual salary of $35,568 for a full-time worker);
  • raising the total annual compensation level for “highly compensated employees (“HCE”)” from the currently-enforced level of $100,000 to $107,432 per year; and
  • allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to ten percent (10%) of the standard salary level, in recognition of evolving pay practices.

The DOL stated that these changes are intended to account for and reflect growth in employee earnings, since the currently enforced standard salary thresholds were set in 2004.

Although the Final Overtime Rule does not take effect until January 1, 2020, employers should begin planning now for the change.  Employers should analyze whether increasing a certain employee’s salary is feasible in order to maintain the applicable exemption, or if their business is better served by reclassifying the employee as non-exempt and paying the employee overtime when required.  If you have any questions about the Final Overtime Rule and how it will affect your business, give us a call.

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TENNESSEE EMPLOYMENT LAW MEETS THE IRS 20 FACTOR TEST

On May 10, 2019 Governor Bill Lee signed legislation amending the definition of employee in several Tennessee employment laws.  Now consideration of the IRS 20 Factor Test must be made to determine whether a worker is an employee or independent contractor under certain laws.

The amended laws are as follows:

  • Code Ann. § 50-2-111 (wage regulations – leased operator or owner operator of motor vehicle, or common carrier contract).
  • Code Ann. § 50-3-103 (Tennessee Occupational Safety and Health Act).
  • Code Ann. § 50-7-207 and 207(e) (Tennessee Employment Security Law – Unemployment Insurance).
  • Code Ann. § 50-9-103 (Drug-Free Workplace Program).

With this amendment “employee” is now re-defined as an individual who performs services under a covered employer for wages if the services performed by the individual qualify as an employer/employee relationship under the IRS 20 Factor Test, which is set forth in IRS Revenue Ruling 87-41.

The law is effective January 1, 2020.

In light of this change employers should examine their relationships with independent contractors now to determine whether the individual is properly classified as an independent contractor under the amended laws.  Making this analysis and taking any necessary corrective action now could save thousands of dollars in the future, in the event a government agency determines that someone who is classified as an independent contractor is really an employee.

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Stop It Bully! Tennessee Expands Anti-Bullying Law To Private Employers

In 2014 Tennessee passed the Healthy Workplace Act (HWA).  Also known as the Anti-Bullying Law,  when originally passed the HWA applied only to public employers.

The HWA prohibits “Abusive Conduct” which is defined as follows:

“acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment such as: (A) repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets; (B) verbal, nonverbal, or physical conduct of a threatening , intimidating, or humiliating nature in the workplace;or (C) the sabotage or undermining of an employee’s work performance in the workplace.” TCA 50-1-502

Unlike harassment or discrimination laws,  the HWA prohibits “Abusive Conduct” even though the conduct is not based on a protected class or activity.

On April 23, 2019 Governor Lee signed a bill expanding the HWA to private employers.  The expansion took effect that day.  So what should private employers do in light of this significant development?

First, adopt a policy in accordance with the HWA.  The HWA provides that if an employer adopts the model policy created by TACIR, or adopts a policy that : 1. Assists employers in recognizing and responding to Abusive Conduct in the workplace; and 2. Prevents retaliation against any employee who has reported Abusive Conduct in the workplace the employer is immune from suit for any employee’s conduct that results in negligent or intentional infliction of mental anguish.  The immunity does not extend to any employee who engages in Abusive Conduct.

The TACIR model policy can be found on pages 13-17 of this link https://www.tn.gov/content/dam/tn/tacir/commission-meetings/2015-january/2015Tab%204HealthyWorkplace.pdf .

Will an existing anti- harassment policy comply with the HWA? If the policy only prohibits harassment based on a protected class, as most all do, it will not.

Employers should not delay in adopting a policy that complies with the HWA to take advantage of the immunity that the Act offers.  The failure to do so could prove to be costly in the future.

 

 

 

 

 

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DOL May Change Its Approach to Joint Employers

This week the United States Department of Labor announced a proposed rule to revise and clarify its  joint employer test.

The Department proposes a clear, four-factor test that would be used to consider whether the potential joint employer actually exercises the power to:

  • hire or fire the employee;
  • supervise and control the employee’s work schedules or conditions of employment;
  • determine the employee’s rate and method of payment; and
  • maintain the employee’s employment records.

The proposal also includes a set of examples for comment that would further help clarify joint employer status.  I have set forth two of the examples below which illustrate when joint employer status will and will not exist under the proposed new rule:

    Example:  An office park company hires a janitorial services company to clean the office park building after hours. According to a contractual agreement with the office park and the janitorial company, the office park agrees to pay the janitorial company a fixed fee for these services and reserves the right to supervise the janitorial employees in their performance of those cleaning services. However, office park personnel do not set the janitorial employees’ pay rates or individual schedules and do not in fact supervise the workers’ performance of their work in any way. Is the office park a joint employer of the janitorial employees?

    Application:  Under these facts, the office park is not a joint employer of the janitorial employees because it does not hire or fire the employees, determine their rate or method of payment, or exercise control over their conditions of employment. The office park’s reserved contractual right to control the employee’s conditions of employment does not demonstrate that it is a joint employer.

 

    Example:  A country club contracts with a landscaping company to maintain its golf course. The contract does not give the country club authority to hire or fire the landscaping company’s employees or to supervise their work on the country club premises. However, in practice a club official oversees the work of employees of the landscaping company by sporadically assigning them tasks throughout each workweek, providing them with periodic instructions during each workday, and keeping intermittent records of their work. Moreover, at the country club’s direction, the landscaping company agrees to terminate an individual worker for failure to follow the club official’s instructions. Is the country club a joint employer of the landscaping employees?

    Application:  Under these facts, the country club is a joint employer of the landscaping employees because the club exercises sufficient control, both direct and indirect, over the terms and conditions of their employment. The country club directly supervises the landscaping employees’ work and determines their schedules on what amounts to a regular basis. This routine control is further established by the fact that the country club indirectly fired one of landscaping employees for not following its directions.

 

The proposed rule will be available for public comment for a period of time before it, or any version of it, takes effect.  Here’s hoping the clear test that is set forth above is adopted, and employers get the clarity they need to accurately assess whether they are or are not joint employers due to the amount of control exercised.

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DOL Issues Notice Of Proposed Rule to Increase Overtime Threshold

The U.S. Department of Labor (Department) announced a Notice of Proposed Rulemaking (NPRM) that, if passed,  would make more than a million more American workers eligible for overtime. The NPRM would increase the minimum salary threshold to qualify for the Executive, Administrative and Professional Exemptions, often referred to as the “white collar exemptions”.

Under the current law, employees with a salary below $455 per week ($23,660 annually) must be paid overtime if they work more than 40 hours per week. This salary level was set in 2004.

This new proposal would update the salary threshold using current wage data, projected to January 1, 2020. The result would boost the standard salary level from $455 to $679 per week (equivalent to $35,308 per year).  The NPRM does not call for automatic adjustments to the salary threshold.

Importantly, the NPRM is not yet law.  Once the rule is published in the Federal Register the public will be able to submit comments for 60 days.  But, given that this increase is approximately $12,000 less than the Obama DOL’s proposed increase enjoined by the U.S. District Court for the Eastern District of Texas in November 2016, it likely has a very strong chance of becoming law.

Employers should prepare accordingly by auditing  exempt positions to ensure that the “duties test” is met.  Remember, if the duties test is not met it does not matter what amount of salary is paid.  Employers should also assess whether an increase to the employee’s salary in order to maintain the exemption is feasible, or if the better business approach is to reclassify the employee as nonexempt and pay overtime when it is required.

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