Employers Should Be Aware of Recent Changes at the Federal Level

by Amelia J. Holstrom

Over the past month, there have been several changes and announcements made by President Trump’s Administration that employers need to be aware of and watch closely over the next six months.  Below is an outline of those changes and why they are important for employers to keep a close eye on.

DACA Program Ended

 On September 5, 2017, Attorney General Jeff Sessions announced that the government is ending the Deferred Action for Childhood Arrivals (DACA) program in March 2018.  The program, established in 2012 by the Obama Administration, allowed undocumented immigrants (applicants) brought to the United States as children to be granted protection that allowed them to apply for driver’s licenses, attend school, and obtain work permits.  The applicants had to pass background and fingerprint checks, among other things, before being granted protection under the program.  Since its creation in 2012, more than 750,000 individuals had been approved for the program.

According to the Attorney General’s announcement, the government will no longer accept DACA applications effective immediately.  The government will, however, accept renewal requests for anyone whose current work permits will expire before March 5, 2018.  The renewals are for two years.  What this means is that anyone with a DACA work authorization that expires after March 5, 2018 will no longer be authorized to live, study, and work in the United States and may be subject to deportation at the time their current authorization expires.

President Trump has called on Congress to act to protect those who were brought to the United States as children before March 5, 2018, when the renewals cease and the program officially ends.  Whether Congress will be able to do so before then is an open question.

In the interim, employers don’t need to do anything right now, but they will need to take action as the DACA work permit for each employee expires.  After March 6, 2018, any employer with an employee who has an expiring DACA work permit will need to reverify that employee’s employment authorization using the normal I-9 reverification process at the time of expiration. Employees who are unable to provide documentation supporting their continued employment eligibility will no longer be permitted to work for the employer.

As a practical matter, employers who employ those currently protected under the DACA program should be prepared to address the emotional impact the Trump Administration’s decision may have on those individuals.  These people’s ability to live and work in the United States, in some cases the only home they have ever known, is in serious doubt.  As a result, it is likely that employees may approach Human Resources or their managers about the matter and ask some important questions.  Employers need to be prepared to answer those questions in a calm and compassionate manner.

EEO-1  Pay Reporting is on Hold, for Now

As discussed previously on this blog, the Equal Employment Opportunity Commission (EEOC) proposed and later finalized a revision to the Employer Information Report (EEO-1) that would have required employers of more than 100 employees to begin providing pay data and hours worked on the annual EEO-1.  Covered employers are already required to provide race, ethnicity, sex and job category information on the EEO-1.

Since the change was finalized, the change had been widely criticized by employers as burdensome.  On August 29, 2017, employers received the break they had been waiting for when the Office of Management and Budget (OMB) informed the EEOC that it was going to review the pay data collection requirement and that the rule was stayed pending review.  As a result, employers will not need to provide pay data and hour information on the EEO-1 report filed in March 2018.  Covered employers, however, will still need to collect race, ethnicity, and gender data by job category and file by the deadline.

Although this is an initial relief for employers, employers need to watch developments in this area as the OMB has not indicated whether it will eliminate the pay data EEO-1 requirement after review.  As a result, it is possible that employers may still have to comply someday, just not by March 2018.

New I-9

 In February, we reminded employers via our blog that they should be using the newest I-9 Form which was effective January 22, 2017.  In July 2017, the U.S. Citizenship and Immigration Services issued yet another revised I-9.  Employers must begin using the new I-9 Form, dated July 17, 2017, by September 18, 2017.  Employers who fail to do so risk penalties and fines.

DOL Seeks Input on Overtime Rule

 As discussed in a recent blog post, the United States Department of Labor is seeking public comment on several specific questions related to the controversial, Obama-era overtime rule.  Employers have until September 25, 2017 to submit comments electronically at www.regulations.gov or view mail at Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW., Washington, DC 20210.  Employers who wish to comment should do so before the deadline.

Posted in Employment Eligibility Verification, Legislation, Wage/Hour | Leave a comment

Reputation is Everything

by Timothy F. Murphy

I just finished reading a nightmare of a case involving the relentless campaign of a town resident to call out and punish a town official for his role in the controversial development of historic property in the center of their town. The town official’s father bought the property, and the official did much of the legal work surrounding the development. It just so happened that the town official sat on the board of selectmen for much of the time the sale and development process took place.

Over the course of years, the resident spent 1-2 million dollars publicizing his allegations of conflict of interest, corruption, multiple investigations, and legal wrongdoing by the official and others. The campaign spread across multiple platforms: emails, town mailings, videos, internet, lawn signs, bumper stickers, a glossy newsletter entitled “Why Perjury Matters,” robocalls, etc.

The resident ultimately sued the official for defamation, after which the official countersued the resident, claiming the resident was the one who had defamed him. After a trial lasting weeks, the jury found that the official did not defame the resident but that the resident defamed the official twenty-nine times. The jury awarded the official 2.9 million dollars, of which 2.5 million was for damage to his  reputation. The resident appealed but lost.

Takeaways for Employers:

This wasn’t an employment case, but as I read it I wondered what the lessons are for employers. There are some lessons; they just aren’t new ones, necessarily.

Most of the employers I know do not fire employees in a rash or hasty manner. They try to get all the key facts and get them right. That is the right thing to do because getting fired can have a devastating effect on some employees. That impact may not be confined to career or ability to make a living, but a firing can have a cascading effect on home, family, etc. So the stakes can be high for employees and employers, especially if there is a legal challenge to the firing.

So back to the lessons for employers:

  1. Make sure employees know what the rules are and that the rules are applied consistently;
  2. Investigate allegations of employee misconduct fairly and thoroughly by getting all sides of the story, even if it takes time;
  3. Rely on the facts and not biases, hearsay, or assumptions in making employment decisions; and
  4. Impose a punishment that fits the “crime.”

By the way, if you want the details of the case that inspired this post, it is called: Van Liew v. Eliopoulos v. Hands on Technology Transfer, Inc., et al., (Mass. Appeals Court No. 16- P-567,  August 25, 2017).

Posted in Policies | Leave a comment

Could Google’s Firing of Engineer Lead to Legal Trouble?

by Amelia J. Holstrom

Earlier this month, Google software engineer James Damore forwarded a 10-page memorandum to his coworkers via employee forums and email.  The memo complained that Google had a left-leaning political bias; explained that he believed the gender achievement gap was driven by personality differences between men and women (for example, he argued that women were less assertive than men and that, while men desire to achieve status in their careers, women, on average, are more interested in maintaining “work-life balance” and seeking a fulfilling life outside of work); and expressed concern that Google’s diversity practices have led to several discriminatory practices, including hiring less qualified candidates to meet diversity goals and operating mentoring programs and classes only for people of a certain gender or race.

In response to the memo, Google CEO Sundar Pichai cut his vacation short, returned to Google, and immediately terminated Damore for “perpetuating gender stereotypes” and violating Google’s Code of Conduct.  Damore has now stated that he is considering legal action against Google for wrongful termination.  So, what types of claims might Google face and what are the legal risks associated with those claims?

Damore Has Already Gone to the NLRB.

Immediately after his termination, Damore filed a Complaint with the National Labor Relations Board (NLRB) alleging that he was terminated in retaliation for engaging in concerted activity protected by the National Labor Relations Act (NLRA).  Even though Damore was not a unionized employee, the NLRA still protects his right, and the right of other non-supervisory employees, to discuss with other employees issues related to their terms and conditions of employment.

It is clear that at least parts of Damore’s memorandum constitute protected concerted activity.  In a number of places he expresses concerns over the terms and conditions of employment that impact him and other Google employees, and he openly shared the memorandum with other employees in an attempt to seek feedback and begin a discussion.   With that hurdle met, Damore must prove that he was fired because of his protected concerted activity and not for some other lawful reason.

Damore’s likelihood of success will depend on a few different factors: (1) Google’s ability to demonstrate that he was terminated for the perceived derogatory comments he made about women and because those comments violated Google’s Code of Conduct; and (2) the makeup of the NLRB itself.

In order to succeed, Google will need to establish that it terminated Damore not because he discussed the terms and conditions of his employment in the memo, but because he made negative and sexist comments about women that were not linked to his comments about the terms and conditions of employment and were, therefore, a violation of the Company’s Code of Conduct.

In recent years, the Obama-era NLRB has mostly favored employees in similar situations, but there are some cases in which the employer was successful in separating the protected concerted conduct from a policy violation and the terminations were therefore upheld by the NLRB.  Here are two important cases that might come into play here:

In Cooper Tire, during a lockout, Anthony Runion yelled from the picket line at a group of black replacement workers: “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.”  After the lockout ended, Runion was not recalled to work because his comments violated the Company’s anti-harassment policy.  After losing at arbitration, Runion filed a Complaint with the NLRB alleging that he was fired for participating in a picket line, and, therefore, the Company did not have just cause to terminate him.  The Board agreed with Runion and reinstated him, finding that, although Runion’s comments were inappropriate, they were linked to his picketing activity, and, therefore, it was unlawful to terminate him.

In Knauz Motors’ BMW, the NLRB reached a different conclusion.  Robert Becker, a salesperson at the dealership, was terminated after making two facebook posts related to his employer.  The first post contained pictures of a recent Ultimate Driving Event at which the dealership launched sales for its newest car while serving hot dogs, bags of chips, and discount cookies.  Becker posted pictures of fellow employees eating hot dogs and holding mini bottles of water. Underneath, he posted comments mocking his employer for its decision to serve hot dogs, bags of chips, and discount cookies at an event to launch the sale of a luxury vehicle.  The second set of posts contained pictures of an accident that occurred at Knauz’s Land Rover dealership adjacent to the BMW dealership. The accident occurred when a salesperson allowed a 13 year-old to sit in the driver’s seat after a test drive.  The child accidentally pressed the gas pedal and drove the truck over his father’s foot and into a pond.  Becker posted a series of photos from the accident with sarcastic comments, including “OOOPS!”  The dealership learned of the Facebook posts through phone calls from other dealerships and then terminated Becker.

Becker filed a Charge with the NLRB alleging that he was terminated for discussing the terms and conditions of his employment with other employees through Facebook.  The Board upheld the termination and concluded that the second post about the accident was not protected concerted activity and that the second post was the sole reason for the termination.

In that case, the NLRB separated the first Facebook post from the second.  Although the first post may have been protected concerted activity – the Board never decided – the Board allowed the termination based on the second post that was not protected activity.  If the Board applies a similar analysis here, it might determine that although some of Damore’s memorandum is protected concerted activity, his derogatory comments are not.  On the other hand, it is possible that the NLRB, like it did with Runion, may find that Damore’s comments, although certainly offensive, were tied to his complaints about the terms and conditions of employment, and, therefore, it was unlawful to fire him.

What the NLRB ultimately decides will be significantly impacted by the makeup of the Board.  Under the Obama administration, democrats held the majority of Board seats.  During that time period, it made a number of controversial decisions that broadened employee rights under the NLRA.  Soon, however, the Board will be controlled by Republicans.  Traditionally, the NLRB under Republican presidents has read employee rights under the NLRA to be narrower and has issued more employer-friendly decisions.

 Damore Could File a Retaliation Claim under Title VII

Another possible avenue that Damore can take is to file a Complaint alleging retaliation for reporting gender discrimination.  To succeed on such a claim, Damore would have to establish that he would not have been fired if he had not complained in the memorandum that Google’s policies were discriminatory towards men.

Damore has a better chance of succeeding with his NLRB Charge than he does under Title VII.  Damore’s memo is riddled with sexist and derogatory comments about women.  If those comments went unaddressed, Google certainly would have received hostile work environment complaints from women based on the memo and any conduct of Damore that they perceived to be harassing or discriminatory thereafter.  This bolsters Google’s argument that they had no choice but to terminate Damore and that his own complaints about discrimination against men had nothing to do with the termination decision, because failure to terminate him could create a hostile work environment for female employees.

Now if we were advising Google, we would have suggested that Google investigate Damore’s allegations of gender discrimination before making the decision to terminate him.  It may not have changed the outcome, but Google would have done its duty under the law to promptly and thoroughly investigate allegations of discrimination and would also know whether there was any merit to Damore’s claims that needed to be addressed.

We May Never Find Out the True Outcome

It is likely that Google and Damore will reach some sort of settlement before either the NLRB or a jury makes a decision about his termination.  As a result, we may never know who would have succeeded under the law.  If the matters were decided before the NLRB and a jury, it is possible that Damore would win in one matter and lose in the other.  Only time will tell.

Bottom Line

Employers often weigh the risks associated with terminating an employee. Those considerations usually include an assessment of the employer’s ability to defend against potential discrimination and harassment claims.  Employers, however, also need to consider whether an employee may have a viable claim that that he was fired for engaging in protected concerted activity under the NLRA.  Failure to do so can have serious consequences for employers.

Posted in Affirmative Action, Discrimination, Harassment, National Labor Relations Board, Title VII | Leave a comment

US DOL Seeks Input on Overtime Rule

by Amelia J. Holstrom

President Trump’s administration has finally taken some action on the Obama-era Department of Labor Overtime Rule.  Since inauguration day, employers nationwide have wondered what would become of the controversial overtime rule.   To recap: the rule, which more than doubled the salary threshold for exempt employees from $455 per week to $913 per week, was halted by a federal court in Texas in November 2016.  Thereafter, the United States Department of Labor under President Obama’s administration filed an appeal of the court’s decision.  After President Trump was sworn in, the DOL sought multiple extensions in which to file a brief in the appeal, but it had not done anything to indicate what the new administration’s position would be on the rule.  That changed on June 30, 2017, when the administration filed a brief with the appeals court arguing that, although some increase in the salary threshold was warranted, the increase under the Obama-era rule would be too burdensome for businesses.   The DOL also informed the court that it would seek public input on the matter.

After filing the brief, the administration published a Request for Information (RFI) in the Federal Register on July 26, 2017.  An RFI is an optional process that can be used by government agencies when drafting rules to seek input from those who may be impacted by the rule.  The RFI, which outlines the history of the salary threshold, seeks public comment on several specific questions.  Those questions include: whether adjusting the salary level for inflation would be an appropriate basis or if some other method would be appropriate; whether the regulations should contain multiple salary levels and if so, how those should be set (for example, by employer size or census region); whether different salary thresholds should be set for each exemption and what impact that would have on employers and employees; whether the salary threshold set by the Obama-era administration eclipsed the duties set forth in the duties tests; and to what extent employers raised salaries in 2016 to comply with the Obama-era rule.

Employers who are interested in commenting on the rule should do so.  Comments must be submitted by September 25, 2017, electronically at www.regulations.gov or via mail at Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW., Washington, DC 20210.

Posted in Legislation, Wage/Hour | Leave a comment

Does an Employer have to Transfer a Disabled Employee to an Alternate Position as an Accommodation?

by Marylou V. Fabbo

According to the First Circuit, which covers Massachusetts, an employer does not have to consider a transfer until the employee demonstrates that the position actually exists.   In Audette v. Town of Plymouth, there was no dispute that Michelle Audette, a police officer, was unable to fulfill the duties of an active patrol officer because of two injuries to her ankle. During the course of her recovery, she had varying limitations.  When her doctors permitted her to work, Audette received full-time pay for performing part-time work in a light duty capacity.  In May 2013, while Audette was out with her first ankle injury, another patrol officer returned to work after having been out with an injury.  He was not able to work as a patrol officer at that time so was assigned to full-time light duty work.  During one period of time he worked assisting with a backlog in the department’s National Incident-Based Reporting System (NIBRS), but when the department got caught up, he was transferred to a station officer position for the rest of his light-duty status.  In November 2013, that officer was returned to active-duty status as a patrol officer.

In June 2013, Audette underwent ankle surgery, and she was cleared to return to work in October, 2013.  However, she was unable to walk or stand, making it impossible for her to be a patrol officer.   Three days after the other officer had been transferred out of NIBRS, Audette requested to be reassigned to NIBRS in the data-entry position in which the other officer had been working.  There was no need to have anyone performing those duties,  however, as the department had gotten caught up on its backlog. Still, Audette was returned to work as a station officer.  Audette subsequently sued the Town of Plymouth alleging (among other things) that it had failed to accommodate her disability by not transferring her to the NIBRS position.

 A Transfer May Be a Reasonable Accommodation

The Americans with Disabilities Act (as well as Massachusetts state law) prohibits employers from discriminating against disabled employees who can perform their essential job functions with or without a reasonable accommodation.  Failing to provide a reasonable accommodation constitutes disability discrimination unless an employer can demonstrate that the accommodation would pose an undue hardship on the employer.  So if there’s no accommodation that would allow the employee to perform the essential functions of the position the employee holds, is it ok to part ways with the employee?  Not according to the Audette Court (or the many courts which also have stated the same).  When a disabled employee cannot perform the essential job functions of his or her position and requests a transfer to another position, an employer may have the duty to transfer the employee.  However, the employee must demonstrate that she can perform the essential functions of the position she is requesting.

An Employer is Not Required to Create a Position to Accommodate a Disabled Employee

Audette did not dispute that there was no accommodation that would allow her to be a patrol officer; however, she maintained that the ADA entitled her to a transfer to a position maintaining NIBRS data.  The Town disagreed, pointing out that no such position existed, and the work that the other officer on light duty had been doing had been completed.  The court stated that it is the employee’s burden to demonstrate that there was an actual position to which the employee could transfer.  The ADA does not require an employer to create a new job for an employee or to reinstate a job that no longer exists.  Despite a few attempts, Audette was unsuccessful in persuading the court that the position remained in existence.  As a result, the First Circuit upheld the District Court’s ruling, granting judgment for the Town. The case is Audette v. Town of Plymouth et al., No. 15-2457 (1st Cir. May 26, 2017)

How Far Does the Duty to Consider a Transfer Go?

In the Audette case, there actually was an opening in NIBRS at the time of her request—for a Records Sergeant.  Still, an employer is not required to transfer an employee to an alternate position for which an employee is unqualified or unable to perform with or without a reasonable accommodation.  Employers who want to stay out of hot water for not providing reasonable accommodations should look at each request for an accommodation on an individual basis.  What might work in one situation may not work in another.  While employers should consider transfer to an open position, an employer is not required to blindly transfer an employee who requests a transfer as a reasonable accommodation.

Posted in Americans with Disabilities Act, Reasonable Accommodation | Leave a comment

I-9 Form Revised Again: Effective September 18, 2017

by Marylou V. Fabbo

In February, we checked in to make sure you were using the then newest form I-9, which was dated November 16, 2016 and became mandatory on January 22 this year.  Come September 18, 2017, that form will no longer be valid.

On July 17th, U.S. Citizenship and Immigration Services issued a revised Form I-9.  Employers can begin using it now if they want to, but as of September 18th, the form revised this month will be mandatory.  After that date, prior versions of the I-9 will no longer be valid, and employers who use an older form may be subject to fines and penalties.  While most of the changes to the I-9 are minor and will make it easier for the employer and employee to complete the form, with a new form comes new opportunity for error.  Employers should make sure their  authorized representatives know how to properly complete this new form before it goes into effect.

Posted in Employment Eligibility Verification | 2 Comments

Massachusetts High Court: Medical Marijuana User Can Sue for Handicap Discrimination

by Erica E. Flores

A year ago, a Massachusetts state court considered for the first time whether employers are required to accommodate the off-site use of medical marijuana by disabled employees.  The court answered that question in the negative, ruling that a private employer has no duty to tolerate an employee’s use of medical marijuana as an accommodation for a disability under Chapter 151B of the Massachusetts General Laws.  The court reasoned that the use of marijuana is still illegal under federal law and cited a number of courts in other states that have also ruled that employers are not required to accommodate disabled employees who use medical marijuana.

Departing from this national trend, the Supreme Judicial Court today partially reversed the Superior Court’s decision.  In particular, the Court concluded that an employee who was fired for failing a pre-employment drug screen based on her use of medical marijuana could sue her former employer for handicap discrimination under Chapter 151B.  The Court reasoned that an exception to an employer’s drug policy to permit the off-site use of medical marijuana is a “facially reasonable” accommodation for a disabled employee where the drug has been prescribed by a physician and is more effective than any alternative medication.

According to the Court, the medical marijuana law itself compels this result because the statute guarantees that users will not be denied any “right or privilege” because of their use of medical marijuana, and the right to reasonable accommodations provided by Chapter 151B is within the scope of that guarantee.  The Court also noted that, by expressly allowing employers to refuse to allow on-site use as an accommodation, the medical marijuana law impliedly recognizes that off-site use “might be a permissible accommodation.”  Finally, the Court ruled that the mere fact that marijuana remains illegal at the federal level does not automatically make off-site use by disabled employees unreasonable as an accommodation.  The Court observed that the employer does not commit any crime by tolerating such use and, if there is any risk to the employer’s business associated with the accommodation, the employer can avoid liability by demonstrating that it would be an undue hardship, e.g. that it would create an unacceptable safety risk or violate a contract or statutory obligation, like the obligations imposed on employers who are subject to regulation by the U.S. Department of Transportation.

As a result of this decision, captioned Barbuto v. Advantage Sales &  Marketing, LLC, employees and prospective employees now have a broad avenue of relief against employers who take adverse action against them for using medical marijuana.  Indeed, unless an employer can demonstrate that the accommodation would be an undue hardship, applicants who are passed over because of medical marijuana use and employees who are disciplined or fired for using the drug will have a strong claim of handicap discrimination under Chapter 151B, particularly if the employer failed to engage in the interactive process to try to identify an equally effective, lawful alternative.  Accordingly, employers who are considering action against an employee who tests positive for marijuana should proceed with extreme caution if the employee has a valid prescription to use the drug.

Skoler, Abbott & Presser, P.C., will be holding a Breakfast Briefing in the near future to explore the consequences of this decision for employers.  Details regarding the breakfast briefing will be available on the Skoler Abbott website shortly.

Posted in Background Checks, Handicap Discrimination, Legislation, Reasonable Accommodation | Leave a comment

Should You Conduct an I-9 Audit?

by Marylou V. Fabbo

Pull three I-9 forms out of your I-9 file.  Now take a careful look at them.  Is every section that needs to be completed fully and accurately completed?  Is Section 1, the Section the employee is required to fill out, complete, dated and signed?  (Social Security numbers are optional, so that space may be blank.)  Do you know the difference between a Lawful Permanent Resident and An Alien Authorized to Work?  Is the Employer’s Section, Section 2, completely filled out?  Does the List A document or the List B and C documents section contain all information, including the Issuing Authority?  Is the employee’s first date of employment included? Are photocopies of the documents the employee presented attached and, if so, why?

Given the current government’s crackdown on illegal immigration, the U.S. Immigration and Customs Enforcement (ICE) and the Department of Justice’s Civil Rights Division are expected to substantially increase the number of I-9 audits conducted and are likely to impose penalties when discovering violations.  For example, Panda Express recently paid $600,000 to settle claims that it discriminated against immigrant workers when verifying them for employment.  Panda Express is alleged to have required immigrant workers to provide documents that they weren’t legally obligated to provide and also made some immigrant employees re-verify their work eligibility even though they weren’t required to do so.  Panda Express admitted no liability in connection with the settlement, so we don’t know if it intentionally took those actions or whether its company’s representative simply was not aware of all the proper protocols for completing I-9 forms and/or re-verifying work eligibility. Are you?

A common I-9 error, and what Panda Express may have been accused of, is requiring an employee who has a List A document, such as a Lawful Permanent Resident Card (a/k/a “Green Card”), to also provide some other documentation such as a social security card.  Because a Lawful Permanent Resident Card is a List A document, no other documentation can be required.  Take a look at your I-9s.  If there is a valid List A document, did someone, likely in error, also include a List B or List C document?  Did you know that even if a Lawful Permanent Resident Card has an expiration date that has not passed at hire, you cannot re-verify the employee once the document has expired?  Another common error is listing the wrong issuing authority for documents, such as listing “USA” as the issuing authority for a social security card instead of the Social Security Administration or the Department of Health and Human Services.  Even these kinds of seemingly minor technical errors can lead to penalties for employers.

Audits often start with an unexpected visit to your place of business. Your company may be a target, or a disgruntled employee may have dropped a (anonymous) dime claiming that some of your employees may not be authorized to work in the U.S.  So, take a look at your audit files; if you find a few incorrect I-9s, it is time to conduct a full audit.  If you’re not knowledgeable about I-9 requirements, you should consider hiring an attorney to conduct them and provide legal guidance on how to correct them.  “Correcting” an I-9 incorrectly defeats the purpose of an audit.  While an internal audit does not insulate companies from penalties for violations, an audit that identifies problems can provide guidance for employers going forward.

Posted in Employment Eligibility Verification | Leave a comment

Will Private Employees Have the Option of Comp Time?

by Erica E. Flores

In 1938, the Fair Labor Standards Act (“FLSA”) implemented basic wage and hour protections in the form of a 40-hour standard workweek and employee entitlement to one-and-a-half times their regular rate for hours worked beyond that.  What the FLSA does not touch, however, is a subject that both employers and employees care about almost as much as compensation: paid time off.

Introduced by Representative Martha Roby (R-Ala.), the Working Families Flexibility Act of 2017 (H.R. 1180), looks to fill that hole by giving employers and employees the option to agree to substitute paid time off for overtime wages.  The bill was passed by the House on May 2, 2017, by a recorded vote of 229 to 197, and moved on to the Senate for further debate.  Whether it will survive the Senate remains to be seen, but President Trump has pledged to sign it if it makes it to his desk.

So how would the Working Families Flexibility Act affect employers?  As its name implies, the legislation would let employees choose to spend more time with their families by electing to receive compensatory time off as payment for overtime work in lieu of traditional overtime compensation.  Like the overtime pay Americans have known for nearly 80 years, this compensatory time off would accrue at the same time-and-a-half rate up to a maximum of 160 hours.  Employees would then have the ability to use that time for any reason – e.g., to care for a sick child, take a longer vacation, or enjoy one more family beach day before school starts – and the employer would be required to pay out any unused accrued time at the end of each year.  The employer would also have the option of paying out any unused accrued time in excess of 80 hours after providing at least 30 days’ notice, while employees would have the ability to request a payout of their accrued comp time within 30 days.  To implement this arrangement, the employee and employer would have to enter into a written agreement before the employee performed the overtime work. This agreement, however, could be withdrawn by the employee “at any time” and by the employer with 30 days’ notice.  Furthermore, the bill would provide employees with protection from intimidation, threats and coercion by employers looking to interfere with their rights to request or not request comp time, or to require employees to use it.  Any employer in violation of these protections would be liable for double damages.

Of course, these very basic provisions would likely be developed further through regulations issued by the Department of Labor.  But even as presently written, they have already been the subject of vigorous disagreement.  Representatives against the bill argue that it would take away the longstanding security of receiving fair pay for overtime work by ultimately providing less pay to those who choose compensatory time. They also argue that the bill would in fact result in less family time by leading to less predictable work schedules and an overall increase in worked overtime hours.  Finally, opponents argue that employers would ultimately reap the greater benefit because they would have the discretion to decide when earned compensatory time could be used, a power that could be used to effectively cheat employees out of their comp time altogether.  For these reasons, opponents are calling attention to other options they claim would provide a greater benefit to employees, such as increasing the federal minimum wage and allowing for more control over schedules.  Proponents of the legislation respond by pointing out that government employees have had the benefit of this option since 1985.

So would H.R. 1180 be a good thing or a bad thing for Massachusetts employers?  On the one hand, employers who decide to offer the option of compensatory time would be opening themselves up to some pretty big unknowns – e.g., how many employees will opt for earned comp time, when and how will they try to use their time, will they seek payment of wages instead, etc. – as well as new grounds for interference and retaliation claims that carry mandatory double damages.  On the other hand, the bill does not require employers to do anything different at all – they would be free to continue to pay overtime compensation as they have been doing and remain in compliance with the requirements of the FLSA.  Additionally, the flexibility inherent in the legislation – including the ability for employers to prevent the use of comp time when it would be “unduly disruptive” to the employer’s operations – may make it an appealing option for employers whose workforces work significant overtime.  And if an employer tried a comp time system and decided it was a bad idea, they would be free to rescind the system with just 30 days’ notice.

It is impossible to know whether H.R. 1180 will pass the Senate and land on President Trump’s desk, or what the DOL’s regulations might look like, but in the meantime, employers may wish to start thinking about whether an earned compensatory time option would be right for their business.

Posted in Benefits, Legislation, Policies, Wage/Hour | Leave a comment

DOL Rolls Back Obama-Era Joint Employer and Independent Contractor Guidance

by Amelia J. Holstrom

Earlier this month, the United States Department of Labor withdrew its 2015 and 2016 guidance on joint employment and independent contractors.   The Obama-era joint employment guidance had expanded the definition of “joint employment” to include situations where multiple employers had the mere authority to control the employees’ terms and conditions of employment, as opposed to the previous interpretation that only employers that actually exerted direct control over terms and conditions of employment would be considered joint employers.  The independent contractor guidance, on the other hand, had narrowed the definition of independent contractor under federal law, making it more difficult to classify a worker as an independent contractor.   The DOL has removed both guidance documents from its website and will no longer be adhering to the guidance.

Although employers nationwide praised the DOL’s latest move, it is crucial for employers in Massachusetts to remember that Massachusetts has one of the most – if not the most – restrictive independent contractor statutes in the United States, and that the DOL’s new enforcement priorities do not change their obligation to comply with that law.

The Massachusetts independent contractor statute was intended to drastically reduce the number of individuals that can be properly classified as independent contractors by creating a framework by which the vast majority of workers must be treated as employees and therefore are entitled to the benefits and rights of employment.  Consistent with this purpose, the statute contains a three-prong test to establish that someone is an independent contractor: (1) the individual is free from control and direction with the performance of the service, both under his contract and in fact; (2) the service is performed outside the usual course of business of the employer; and (3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.  If any of the above statements are not true regarding an individual’s work, the worker must be classified as an employee.  Under the law, it is the employer’s burden to prove that all three prongs of the independent contractor test are met.

Despite the law’s very broad language, some industries have had success in getting Massachusetts courts to carve out narrow exceptions to the independent contractor statute.  For example, the Supreme Judicial Court has held that real estate agents and Boston taxi cab drivers can be classified as independent contractors even though such employees seem never to meet prong 2 of the independent contractor test (because Massachusetts law requires real estate agents to work for a real estate brokerage, and it requires cab drivers to belong to radio associations that provide dispatch services).

In the case of real estate agents, the SJC reasoned that because the laws regulating real estate agents explicitly state that real estate agents may work as independent contractors, that language overrides the language of the independent contractor law.  In the case of cab drivers, the SJC found that the dispatch services provided by radio associations, which don’t actually own or operate any taxis themselves, are distinct from the transportation services provided by the cab drivers.

In addition, as discussed previously, employers covered by the Federal Aviation Authorization Act of 1994 get a small break from the statute.  Because the court has found prong 2 of the independent contractor statute to be preempted by the FAAA, motor carrier companies only have to meet the criteria set out in prongs 1 and 3 to legally use independent contractors rather than hire employees.

These exceptions are very limited, however, and employers need to be careful when classifying individuals as independent contractors.  One misstep can lead to years of litigation over unpaid wages, which will be costly in the long run.

Posted in Independent Contractors, Legislation, Wage/Hour | Leave a comment