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New OSHA Accident Reporting Rules Rule Out Mandatory Post-Accident Drug Screening

Many employers have policies and procedures that mandate drug and alcohol testing in the wake of a workplace accident, regardless of whether there is any suspicion that the employee involved was impaired. However, effective August 10, 2016, OSHA’s final rules on electronic reporting of workplace injuries require employers to implement “a reasonable procedure” for employees to report workplace injuries and that procedure cannot deter or discourage employees from reporting a workplace injury.  Though the text of the final rule (29 CFR § 1904.35(b)(1)(i)) does not specifically address mandatory post-accident drug and alcohol testing, OSHA’s May 12, 2016 commentary accompanying the final rules specifies that the agency views mandatory post-accident testing as deterring the reporting of workplace safety incidents and employers who continue to operate under such policies will face penalties and enforcement scrutiny. [Read more →]

May 31, 2016   No Comments

OSHA Changes: Are You Keeping Up?

Employers want all employees to do their work and go home safely each day.  A workplace injury is bad news for everyone.  When OSHA or a similar state safety agency gets involved, it becomes an even bigger problem for employers.  That reality is even more true today as OSHA’s maximum fines have recently increased, and it has added new recordkeeping and reporting requirements that raise further concerns for employers.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s stated role is “to ensure [safe working] conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.” [Read more →]

May 26, 2016   No Comments

Changes to the FLSA’s White Collar Exemptions Are Finally Here! Higher Salaries and More Overtime, Here We Come.

The U.S. Department of Labor (DOL) announced the final version of their long-awaited overtime exemption rule today, which makes notable changes to the requirements for employees to qualify under the Fair Labor Standards Act’s (FLSA) “white collar” exemption. The most noteworthy change is an increase in the required salary level for exempt employees to $47,476 per year, but there are other important changes as well.

The rule first surfaced nearly a year ago in June 2015 and it has been a concern of all employers since then. The stated goal of the rule is to expand federal overtime regulations so that more than 4 million more workers will likely be entitled to overtime. [Read more →]

May 18, 2016   No Comments

Keeping Internal Investigations Confidential: That’s Not Legal?

While speaking at a conference this year, I asked members of the Human Resources community to raise their hands if they routinely instructed employees not to discuss internal investigations.  No surprise, most of the hands (maybe all of them) went up.


For many good reasons, most employers instruct employees to keep the fact of and contents of investigations confidential.  For example, when investigations become public, employees often become less willing to come forward and discuss the nature of the investigation.  Also, in most instances the nature of the investigation involves sensitive information, like a harassment complaint.  Yet, the National Labor Relations Board (NLRB) has indicated that reasons such as these are not legally sufficient to tell employees to keep their mouths shut.

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May 9, 2016   No Comments

Supreme Court Revisits “Trial by Formula” Approach in FLSA Collective Action


In 2011, the U. S. Supreme Court issued a landmark decision regarding certification of employment discrimination class actions. The opinion, Wal-Mart v. Dukes, rejected the “trial by formula” approach of allowing a random sample of the class members’ claims to be tried, with the results of those trials to be applied to the entire class. Among other problems, the Court found that this shortcut approach deprived defendants of the ability to litigate statutory defenses to individualized claims. Dukes, however, did not reach the narrower issue of whether “representative,” “sample” or “anecdotal” evidence” is ever appropriate in a class-action employment case. [Read more →]

May 2, 2016   No Comments

Does Title VII Protect Against Sexual Orientation Discrimination? The Answer May Be Changing

Recent laws in North Carolina and Mississippi and the subsequent backlash are all over the news.  The U.S. Supreme Court’s decision in Ogberfell v. Hodges making gay marriage legal across the country is not even a year old.  The Fourth Circuit Court of Appeals very recently rule in favor of the right of transgender high school students to use bathrooms for the gender with which they associate.  LGBTQ rights are at the forefront like never before.  Employment discrimination is no exception.  The Equal Employment Opportunity Commission (“EEOC”) has recently filed two separate suits in Pennsylvania and Maryland district courts challenging the long-held belief that Title VII does not protect against discrimination based on sexual orientation.


For many years courts held that because sexual orientation was not explicitly mentioned in the text of Title VII, the statute afforded no protection to employees based on their physical and emotional attraction.  Cases in numerous federal courts of appeal held that Congress had to explicitly protect this class of employees to allow for claims of sexual-orientation discrimination. [Read more →]

April 25, 2016   No Comments

What is an Overnight Stay for Inpatient Care Under the FMLA?

Employers with more than 50 employees are usually aware that the Family Medical Leave Act (FMLA) may apply to their business and their workers. That law, which provides for protected leave for employees in certain situations and various amounts (most often up to 12 weeks of leave), can sound simple but is very complex in its details.

For example, take the issue of what is an “overnight stay” by an employee at a hospital or similar facility.  The definition of “overnight stay” matters, because an overnight stay is the type of event that constitutes inpatient care and can trigger an employee’s right to FMLA leave, possibly protecting the employee from discipline or termination due to that absence from work.

Hospital BedIn the case decided by a federal appellate court, the employee began experiencing chest pain, dizziness and shortness of breath at work late in the afternoon of November 14.  He claims he got permission from his managers to leave work early, and late that evening he went to a hospital, being formally admitted for treatment after 12 a.m. on Nov. 15.  (Note that time for later.  It is important.)  He underwent tests and was released later in the evening on Nov. 15.

When he came back to work he was terminated for walking off the job on Nov. 14.  Apparently, there was a dispute about whether he really had the permission of his managers to leave work early that day (and clearly there was some doubt by his employer of whether his claim of being ill was real or not).  The employee ultimately filed suit, claiming his termination violated the FMLA because his absence from work was inpatient care at a hospital protected by the FMLA.  So his FMLA claim hinged on whether his care at the hospital counted as an “overnight stay.”

The appeals court ruled that it did not.  It decided that to be an “overnight stay” the care at the hospital must span over two calendar days.  This employee’s treatment at the hospital, while significant, all occurred on Nov. 15.  The court also suggested (without ruling) that a minimum stay of at least 8 hours over those two calendar days was also likely necessary for it to be an overnight stay, but it did not need to reach that conclusion in this case, since this employee’s time at the hospital was all within one calendar day.

So now we know (at least according to one federal appellate court) what an overnight stay really is under the FMLA — a hospitalization that starts at or before 11:59 p.m. on one day and lasts well into the next day.  Good to know.  Did you ever think such a small detail as when an employee checked into a hospital would determine the outcome of an employment lawsuit?  It just goes to show that in employment law, and especially with the FMLA, small details can have a very big impact.


April 19, 2016   No Comments

New York and California Lead the Way in Minimum Wage Increases and Paid Leave

fist_of_cashIn recent days, New York and California took the first steps in addressing new demands for a “living wage,” with both states raising the minimum wage to $15 per hour. New York City and San Francisco also enacted monumental legislation regarding paid family leave.

On April 4, 2016, California enacted a law which mandates an incremental increase of the minimum wage over the next five to six years. For employers with 26 or more employees, the minimum wage will increase to $10.50 per hour starting on January 1, 2017, $.50 per hour on the next year, and then will increase by $1 an hour each year until the minimum wage is $15 by 2022.  Employers with 25 or less employees have an extra year to comply with the minimum wage increase, with the same increases starting on January 1, 2018 through 2023.  Notably, this law also affects exempt employees as California requires their salaries to be at least two times the State’s minimum wage.  Currently, the minimum exempt salary is $41,600, but it will ultimately rise to $62,400.

On the same day, New York passed its 2016-17 state budget which also provides for the state minimum wage to be incrementally increased to $15 per hour.  The timing for the increase is dependent on both employer location and number of employees.  New York City employers with 11 or more employees must pay $11 per hour by the end of this year, with a $2 increase each year, until the minimum wage is $15 by the end of 2018.  For New York City employers with 10 or less employees, the minimum wage will increase to $10.50 by the end of this year, with a $1.50 per hour increase each year, until the minimum wage is $15 by the end of 2019.  Employers elsewhere have a more gradual increase, with some counties having until 2021 to reach $15 per hour.

Through its budget, New York also enacted landmark paid family leave, providing employees with up to 12 weeks of paid family leave.  Employees who have worked at least six months for the employer will now be eligible for 12 weeks of partially paid leave to care for an infant, a family member with a serious health condition, or to ease family pressures when a family member is called to active military service.  This change will be enacted gradually, beginning in 2018 at 50% of an employee’s average weekly wage (and capped at 50% of the statewide average weekly wage) and rising through 2021, when eligible employees may receive 67% of their average weekly wage (capped at 67% of the statewide average weekly wage).  These new benefits will be funded by an employee payroll deduction, not directly by employers.

Also this week, San Francisco approved legislation requiring employers to provide employees with 6 weeks of fully paid parental leave.  This applies to both mothers and fathers and for both births and adoptions.  Currently, California’s state disability program provides employees with up to 55% of their wages for 6 weeks of family leave.  This new legislation requires employers with 20 or more employees to provide the remaining 45% of the employee’s wages. Employees must work eight or more hours a week to be eligible.

These are big changes to wages and pay for time off for employers with employees in California and New York, and especially in New York City and San Francisco.  If you have people working there, now is the time to learn all about these changes and prepare for them, as their effective dates will be here before you know it.

April 13, 2016   No Comments

Background Screening Summary – February 2016

Below is an overview of recent Background Screening articles, from Troutman Sanders’ Consumer Financial Services Law Monitor Blog. New background screening related articles are posted each month that provide timely updates on this area of the law. [Read more →]

March 3, 2016   No Comments

HR’s Work Is Never Done: New California FEHA Regulations Require Revision of Anti-Harassment Policies

On April 1, 2016, new regulations from California’s Fair Employment and Housing Council will go in effect. These new regulations state that “[e]mployers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act,” and require changes in employment policies. As a result, employers should carefully review their existing policies to ensure compliance with these new standards and act quickly to make any needed changes before April 1. [Read more →]

February 24, 2016   No Comments