Employment Law Alert: Enhanced Collaboration between EEOC and WHD: What Employers Should Know

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Employment Law Alert: How Federal Contractors Will Be Impacted By The Government Shutdown

Posted on September 29, 2023September 29, 2023 by Hanna Hefner

It is unfortunately likely that the federal government will shut down after funding expires this Saturday. This Alert discusses many of the significant employment-related issues caused by the shutdown. Contractors who are required to stop work will need to decide whether to continue to pay employees for the period of the shutdown, reassign employees to unaffected contracts, require employees to take paid or unpaid leave or lay off/furlough employees.

Wage and Hour Issues

Under the federal Fair Labor Standards Act (“FLSA”), a federal contractor may make mandatory deductions from an exempt employee’s paid leave or other leave banks for a full or partial day’s absence during a shutdown, furlough or reduced hours plan without affecting the employee’s FLSA-exempt status, as long as the employee receives their full salary. However, federal contractors will need to be mindful of applicable state wage and hour laws before requiring the use of paid time off.

Federal contractors can withhold payment for any full week in which an exempt employee does not work. However, payment cannot be withheld if an exempt employee performs any work during a furlough week. Non-exempt employees who perform work must be paid for all time worked. Accordingly, federal contractors should instruct employees not to perform any work while on furlough.

Potential layoffs may trigger the federal Worker Adjustment and Retraining Notification Act (WARN Act), which generally requires covered employers to provide 60 days’ notice to employees affected by a plant closing or mass layoff resulting in an “employment loss.” An “employment loss” is defined as: (1) a termination, (2) a layoff exceeding 6 months, or (3) a reduction in an employee’s hours of work of more than 50% in each month of a 6-month period. If the shutdown lasts for more than 4 months, federal contractors will need to consider whether to provide the notices required under the WARN Act. Federal contractors also will need to consider applicable state laws governing employer obligations that may be triggered by layoffs.

Employee Benefits Issues

Federal contractors may also need to consider the shutdown’s impact on employee benefits. For example, federal contractors should consider how they will handle a furloughed employee’s portion of insurance premiums if the shutdown lasts longer than anticipated. In addition, a furlough or reduction in hours may cause employees to lose coverage under the employer’s health plans. In that case, affected employees could be eligible for COBRA continuation coverage, and the employer would need to send out COBRA notices.

Federal contractors should be aware that employees who are furloughed may be eligible for unemployment insurance benefits. State laws vary on eligibility for benefits, and may require the employer to provide certain notices to employees at the beginning of the furlough.

Federal contractors should reach out to their contracting agencies for guidance on the status of their contracts. If you have any questions about this Alert, we encourage you to contact your Shulman Rogers attorney for solutions and recommendations.

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Employment Law Alert: 2022 EEO-1 Reporting Period Opens October 31, 2023

Posted on September 26, 2023 by Hanna Hefner

The EEOC has announced that the 2022 EEO-1 reporting period will open on October 31, 2023. Employers with 100 or more U.S. employees and federal contractors with at least 50 U.S. employees are required to submit an EEO-1 report to the EEOC each year. The 2022 EEO-1 report will be based on a workforce payroll snapshot taken between October 1 and December 31, 2022. The deadline to file the report is December 5, 2023.

Additional information about the 2022 EEO-1 reporting period is available here.

If you have any questions about this Alert, we encourage you to contact your Shulman Rogers attorney for solutions and recommendations.

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Employment Law Alert: Government Bans TikTok on Federal Contractors’ Devices

Posted on September 14, 2023November 1, 2023 by Hanna Hefner

The federal government recently issued a rule banning TikTok or any successor application developed by ByteDance Limited on all government-owned or managed information technology used by federal contractors and subcontractors, including personal devices used for federal contract work. This means that federal contractors and subcontractors must require employees to remove TikTok from personal cell phones and other devices that are used in the performance of a federal contract. The rule applies to solicitations issued on or after June 2, 2023, and awards occurring after June 2, 2023.

The full text of the rule can be accessed here.

If you have any questions about this Alert, we encourage you to contact your Shulman Rogers attorney for solutions and recommendations.

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Employment Law Alert: Department of Labor Proposes a New Overtime Salary Threshold

Posted on September 7, 2023September 25, 2023 by Hanna Hefner

On August 30, 2023, the Department of Labor (“DOL”) published a Notice of Proposed Rulemaking (“NPRM”) which announced DOL’s intent to revise the Fair Labor Standards Act (“FLSA”) exemptions from minimum wage and overtime pay requirements for executive, administrative, professional, outside sales and computer employees. Notably, their proposal calls for a substantial increase in the minimum salary threshold for the “white-collar exemptions” to overtime requirements – meaning that millions more workers could now receive overtime pay or, alternatively, a significant increase in their salaries – to maintain their exempt status.

Proposed Rule

Under the proposed rule, the salary level for the white-collar exemptions to apply will increase from the current $684 per week ($35,568 per year) to $1,059 per week ($55,068 per year). This would be a 55% increase from the current level that became effective in January 2020 during the Trump Administration. Due to this significant increase, the DOL estimates that this would result in over 3.6 million workers receiving overtime pay if implemented. The rule also proposes automatic increases to the overtime salary threshold every three years to reflect current earnings data.

Importantly, the DOL also seeks a major (34%) increase to the total annual compensation requirement for employees to still qualify for the highly compensated employee exemption. Under this newly proposed rule, employees will have to earn at least $143,988 annually to remain eligible for the highly compensated employee exemption (up from the current annual threshold of $107,432 – which was the result of the DOL’s 2020 Rule).

This time, the DOL’s proposed increase to the salary threshold will apply to the U.S. territories, which have not seen a change since 2004. The standard salary level will apply to employees in all territories that are subject to the federal minimum wage (including Puerto Rico, Guam, the U.S. Virgin Islands and the Commonwealth of the Northern Mariana Islands).

In addition to this new, elevated, salary threshold, for an employee to qualify as exempt under the FLSA, he/she still must continue to satisfy a job duties test. The job duties test examines whether the employee’s actual job functions meet the requirements of the applicable exemption. The newly proposed rule does not make any changes to the existing job duties test.

Takeaways

It is important to note that the DOL’s proposal is not yet law and, as in the past, it is likely to face a few hurdles before (and if) it takes effect. First, the process calls for comments on the NPRM – due 60 days after its official publication in the Federal Register. Then, DOL will consider all comments received before publishing a final rule. DOL’s proposed, vast increase to the overtime salary threshold (during the Obama Administration) was challenged in court in 2017 and never actually went into effect. Look for this proposed rule to be challenged as well.

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Gregory Grant

Anna Margolis

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Employment Law Alert – AI in Employment: Ensuring Compliance with Title VII of the Civil Rights Act

Posted on September 5, 2023September 25, 2023 by Hanna Hefner

Before you’ve had your morning coffee, artificial intelligence (“AI”) has already made a dozen decisions for you, and now, it’s punched its time card and is clocking into our workplaces. Employers now have access to a seemingly endless number of AI or algorithmic decision-making tools to assist in employment decisions like recruitment, resume screening, hiring, retention, evaluation, promotion, and more. These tools can be used to save time, increase objectivity, optimize performance, or reduce bias. The use of these tools, however, must align with the legal requirements under Title VII of the Civil Rights Act of 1964.

The U.S. Equal Employment Opportunity Commission (“EEOC”) enforces and provides guidance on federal equal employment opportunity (“EEO”) laws and recently published a letter to educate employers and stakeholders about the application of EEO laws to software, algorithms, and AI in employment decisions. This guidance accentuates the EEOC’s focus on AI in the workplace and highlights potential legal compliance issues.

The guidance makes clear that an employer’s use of AI must comply with Title VII of the Civil Rights Act of 1964 and may not result in a “disparate impact” or “adverse impact” that may have a disproportionately large negative effect based on factors such as race, color, religion, and sex. Moreover, employers may be held accountable under Title VII for third-party-designed tools they utilize for aiding or making employment decisions. This puts the burden of compliance on employers and emphasizes the critical need for thorough vetting of software, products, or vendors to ensure they comply with EEO laws.

AI has been a recent focal point for the EEOC. In May 2022, the EEOC provided technical guidance regarding employer use of advanced technologies, particularly how they comply with the ADA. That guidance focused on the potential to exclude or “screen out” individuals with disabilities, offering recommended practices to mitigate this risk.

The latest guidance serves as an important reminder to employers of the legal considerations associated with AI-based tools. It doesn’t introduce new policies but provides further insight into the EEOC’s views on the implementation of AI in the recruitment and evaluation of employees, emphasizing the use of AI technology without infringing on legal and ethical obligations. If you have any questions about this Alert or would like assistance with evaluating whether an automated process used by a particular software, product, or vendor complies with Title VII, we encourage you to contact your Shulman Rogers attorney for solutions and recommendations.

The full text of EEOC’s guidance can be accessed here.

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Employment Law Alert: New Rule Makes it Much More Difficult for Employers to Defeat Union Campaign

Posted on August 29, 2023September 25, 2023 by Hanna Hefner

Employers, please take note. The National Labor Relations Board (“NLRB”) just changed the rules for union elections, making it much more challenging for employers. The big takeaway away—that if a union presents the company with union cards or a petition, please call your lawyer immediately and do not do anything else.

Why? Under the new rules announced in this month’s CEMEX decision, if the union requests recognition based on a majority of employees in an appropriate bargaining unit, the employer now (newly) has the burden to promptly file an election petition with the NLRB. If the employer does not act, the majority is likely established and the union is now likely to be recognized.

So, that explains why you need to call your lawyer immediately. You probably need help filing that RM Petition to avoid an automatic union. But why do we also say “Do not do anything else”? The second shoe to drop from this decision is that if the employer does file for an election but is found to have committed an Unfair Labor Practice (ULP) during the campaign, the union automatically wins. In other words, the employer can win the election but the NLRB can override the vote and install the union on the ground that the employer “tainted” the election.

According to the NLRB, there were almost 10,000 ULP charges filed during the first six months of the fiscal year 2023, up 16%. We have no crystal ball, but we’re willing to bet that with the new power of a ULP during a union campaign, that number will go up again. Dramatically.

Again, if a union reaches out you probably want to call your lawyer immediately and do not do anything else. If you have any questions about this Alert, we encourage you to contact your Shulman Rogers attorney for solutions and recommendations.

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Employment Law Alert: Time to Update Your Handbook?? NLRB Adopts New Standard For Assessing Facially Neutral Work Rules

Posted on August 28, 2023September 25, 2023 by Hanna Hefner

The National Labor Relations Board recently issued a decision that changes the standard for assessing whether facially neutral work rules (rules that do not expressly restrict employees’ protected concerted activity) violate the National Labor Relations Act (NLRA). Under the old standard, the Board designated a certain category of work rules that are always lawful to maintain. In plain English, this means that the Board now considers whether a “neutral” rule could still be understood to violate the law even if that was not the express intent.

For example, under the new standard, the following policy could be unlawful: Conduct that maliciously harms or intends to harm the Company’s business reputation will not be tolerated. You are expected to conduct yourself and behave in a manner conducive to efficient operations.

Why was it potentially unlawful? The policy makes no exception for statements that would be protected by the NLRA, which would protect false or negative statements relating to the right to organize or to concerted protest of workplace issues.

Under the new standard, the NLRB’s General Counsel must prove that a challenged rule has a reasonable tendency to chill employees from exercising their rights. If an employee could reasonably interpret the rule to have a coercive meaning, the General Counsel will carry her burden. If the General Counsel does so, then the rule is presumptively unlawful. However, the employer may rebut that presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule. If the employer proves its defense, then the rule will be held to be lawful.

Employers should review their handbooks and policies to determine whether their work rules could reasonably be interpreted (even implicitly…) as restricting employees’ protected concerted activity under the NLRA. This assessment must include whether the employer can articulate a legitimate and substantial business interest for the work rule.

If you have any questions about this Alert, we encourage you to contact your Shulman Rogers attorney for solutions and recommendations.

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Employment Law Alert: EEOC Issues Updated Guidance in Visual Disabilities in the Workplace and the ADA

Posted on August 17, 2023September 25, 2023 by Hanna Hefner

The EEOC recently issued an updated version of its Visual Disabilities in the Workplace and Americans with Disabilities Act technical assistance document. The document addresses when employers may ask employees questions about a visual impairment, possible reasonable accommodations for applicants or employees with visual disabilities, how to handle safety concerns, and harassment prevention. The term “visual disabilities” refers to any disabilities related to an individual’s vision. The phrase “vision impairments” refers to various vision-related conditions, including blindness, low vision, limited visual fields, photosensitivity, color vision deficiencies, or night blindness.

The document explains that many individuals with vision impairments can successfully and safely perform their jobs, with or without reasonable accommodation, and that these individuals should not be denied employment opportunities for which they are qualified based on stereotypes or incorrect assumptions that they may cause safety hazards, may increase employment costs, or may have difficulty performing certain job duties. Individuals who wear ordinary glasses or contact lenses are not considered disabled under the ADA. In addition, an employer cannot require an individual to take a vision test with uncorrected vision or meet a vision standard with uncorrected vision unless that test or standard is job-related and consistent with business necessity.

The document also discusses an employer’s ability to ask questions related to visual disabilities. Regarding job applicants:

Employers may not ask whether an applicant has or had a vision impairment or treatment related to any vision impairment before making a job offer. Employers can ask questions pertaining to the applicant’s ability to perform job functions with or without reasonable accommodation. For example, an employer can ask whether the applicant can read labels on packages that need to be stocked.
Applicants are not required to disclose a current or past visual disability before accepting a job offer.
If an applicant has an obvious vision impairment or if an applicant voluntarily discloses a vision impairment, and the employer reasonably believes that the applicant will require an accommodation to perform the job, the employer may ask the applicant whether one is required and what type.
After making a job offer, an employer may ask questions about the applicant’s health, including visual disabilities, so long as the employer is asking the same questions to other individuals entering the same job.

As for employees:

An employer may ask an employee about a visual disability only when it has a reasonable belief that the employee’s ability to perform the essential job functions is impaired or that the employee will pose a direct threat in the workplace.
An employer may ask an employee about a vision impairment to support the employee’s request for a reasonable accommodation needed because of a vision impairment, to enable the employee to participate in a voluntary wellness program, to comply with federal safety statutes or regulations, or to verify the employee’s use of sick leave related to a vision impairment if the employer requires all employees to provide such information (such as doctors’ notes) to justify their use of sick leave.

The document also discusses some examples of reasonable accommodations, including:

Assistive or accessible technology or materials (such as text-to-speech software; optical character recognition; systems with audible, tactile, or vibrating feedback; website modifications for accessibility; written materials in more accessible or alternate formats; low vision optical devices; digital apps or recorders; smartphone or tablet apps with built-in accessibility features; an interactive, tactile, graphical display; a desktop, handheld, or wearable video magnifier, or a closed-circuit television system for reading printed materials; computer screen magnification tools; adjustable computer operating system settings; prescription versions of workplace equipment; wayfinding tools or tracking devices; anti-glare shields, light filters, or wearable absorptive filters; large print or high-contrast keyboards; talking products; color identification technology; accessible maps)
Modification of employer policies or procedures, testing, or training (such as workplace etiquette modifications, policy modifications to allow use of personal use items, dress code modifications, allowing the use of an assistance animal, modifying work schedules, making remote work available, time off, alteration of marginal job functions, reassignment to a vacant position)
Work area adjustments (such as a workspace with brighter or lower lights, audible or tactile signs and warning surfaces)
Sighted assistance or services (such as screen-sharing technology, qualified readers, sighted guides, noise-cancelling headphones, braille labeler)

Finally, employers should make clear that they will not tolerate harassment based on disability or any other protected basis. Employers can do this through a written policy, employee handbooks, staff meetings, and periodic training. Employers should immediately conduct a thorough investigation of any report of harassment and take swift and appropriate corrective action.

If you have any questions about this Alert, we encourage you to contact your Shulman Rogers attorney for solutions and recommendations.

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Employment Law Alert – Calculating FMLA Leave During Holidays: An Analysis of DOL’s Recent Opinion Letter

Posted on August 15, 2023 by Hanna Hefner

The Wage and Hour Division of the U.S. Department of Labor (“DOL”) recently published an Opinion Letter titled “Whether Holidays Count Against an Employee’s FMLA Leave Entitlement and Determination of the Amount of Leave Taken.” The letter clarifies the application of leave under the Family and Medical Leave Act (FMLA) when a holiday falls within the workweek.

The crux of the letter is the question of whether an employee taking FMLA leave during a week inclusive of a holiday should have leave calculated as: (A) a fraction of their standard workweek; or (B) a fraction of a decreased workweek (i.e., their regular workweek minus one day). The DOL advises that the computation should be based on a fraction of the employee’s usual, full workweek.

When Leave Is Taken for a Full Workweek:

Eligible employees of covered employers are entitled to 12 weeks of unpaid leave for specific family and medical purposes under the FMLA. The letter emphasizes that if a holiday falls within a week in which the employee is taking an entire workweek of FMLA leave, the regulations mandate that the whole week be counted as FMLA leave.

When Leave Is Taken on an Intermittent or Reduced Schedule:

Employees may utilize FMLA leave intermittently or on a reduced leave schedule, reducing their hours in the day or week. The letter confirms the DOL’s consistent position that a holiday is not counted as FMLA leave when less than a full workweek of leave is taken, unless the employee was slated to work on the holiday and used FMLA leave for that day.

The letter also refers to a 2008 Notice of Proposed Rulemaking that declared the use of intermittent or reduced schedule leave “shall not result in a reduction in the total amount of leave to which the employee is entitled. . . . beyond the amount of leave actually taken.” Therefore, subtracting the holiday from the workweek when calculating FMLA leave for a partial week would wrongly diminish the employee’s leave entitlement.

The DOL concludes that the FMLA leave entitlement should be grounded in the employee’s standard workweek. If the employee is not scheduled or expected to work on the holiday, the fraction of the workweek of leave used is determined by dividing the amount of FMLA leave taken (excluding the holiday) by the entire workweek (including the holiday).

This Opinion Letter provides a critical framework for both employers and employees, ensuring that the implementation of FMLA leave, especially in weeks containing a holiday, adheres to federal guidelines. It underscores the necessity to base calculations on the employee’s full, normal workweek rather than reducing it due to holidays, which preserves the true entitlement of the leave.

Navigating the complexities of labor laws such as the Family and Medical Leave Act (FMLA) can be a challenging task, especially with the recent Opinion Letter regarding holidays and leave entitlements. Our Labor and Employment Group at Shulman Rogers is here to help and guide employers through these intricate regulations. If you have any questions about this Alert, we encourage you to contact your Shulman Rogers attorney for solutions and recommendations.

The full text of the Opinion Letter is available here.

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