On April 9, 2018, the Department of Labor announced the issuance of a Field Assistance Bulletin clarifying the recent amendments to the tip pooling provisions of the Fair Labor Standards Act, which were incorporated in the omnibus budget bill that was passed by Congress on March 21, 2018. Additionally (but without fanfare), the DOL revised its Fact Sheet #15: “Tipped Employees Under the Fair Labor Standards Act (FLSA).” The Bulletin clarifies that employers who pay the full minimum wage to tipped employees may require their participation in tip pools that include workers who are not “customarily and regularly” tipped – an issue that had been subject to significant controversy.
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Burning a Customer Is Not the Appropriate Response to Harassment
As a minority female, I have had my share of being harassed, and I have felt rage at the unfairness. I completely understand the desire to lash out at the harasser. But actually burning them with a cigarette? Well, that crosses the line (unless, of course, the harasser is threatening physical harm. Then, all bets – and gloves – are off!) But that’s what one employee did, and yet she was surprised when the employer fired her for it.
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No FMLA for Pet’s Death
In a previous post about pet bereavement leave, I noted that the Family and Medical Leave Act does not provide leave to care for an ill or dying pet. (Because a pet is not technically a family member. Really. Despite how we pet-owners feel about our fur babies. That’s mine in the picture.) But I also said that, “if an employee becomes depressed because of the death of a pet, it is possible that this could rise to the level of a disability that would require a reasonable accommodation under the Americans with Disabilities Act, or a serious health condition for which leave must be granted under the [Family and Medical Leave Act].” I further noted, however, that most people may experience grief but not become clinically depressed as the result of a pet’s death. So my interest was piqued by a recent case in which the employee claimed that his insomnia following his dog’s death was a serious health condition under the FMLA.
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Does Apple’s New HQ Violate OSHA?
Apple has a new $5 billion headquarters building on its campus in Cupertino, California. It was constructed from the imagination of iconic founder, Steve Jobs, who envisioned the structure with its glass-encased interior and exterior rings as a true “temple of design” (according to the San Francisco Chronicle). In fact, architecture and interior design often are aspirational. We construct spaces to reflect not who we are, but who we would like to be, to elevate us from the clutter of our messy lives to a higher plateau. We seek feng shui – uplifting energy. Sometimes, however, concept clashes with real life (like when I realized my amazing new master bathroom with the walk in shower and granite counters had no place to hang hand towels; my interior designer thought that towel rings would interrupt the feng shui).
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Another Anonymous Employee Posting App? Watch Out!
Employers struggle with the challenges of social media platforms that allow employees to post information, complaints, and even disclose confidential company information on an anonymous basis. Often, the information is false or misleading – but employers usually find little recourse, as we’ve discussed in a previous post, Employee Warning – GlassDoor Posts May Not Always Be Anonymous (in which we discuss the rare case where the employer triumphs). This week, CNN Money reported on another new app, “Blind,” for employees to make these anonymous postings.
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No Enforcement of the EEOC’s Criminal Background Check Guidance?
My world shifted slightly last week, when a federal court in Texas ruled that the Equal Employment Opportunity Commission could not enforce its Enforcement Guidance on “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” After all, for years now I had looked to this Guidance as the EEOC’s definitive position on the use of criminal background records, particularly in hiring. I had referred clients to it, provided legal advice based on it, cited it in articles and presentations…. But now?
Continue Reading No Enforcement of the EEOC’s Criminal Background Check Guidance?
Employers – Don’t Let Your Emojis Get the Best of You
Emojis and emoticons, which we all use to add flavor and emotion to dry, text based communication on our phones, emails, or Facebook messages, have become points of contention in a variety of legal disputes. (For those of us not in the know, emoticons are created from a standard computer keyboard while emojis are more commonly used when texting or using social media.) This phenomenon should not be too surprising, as there are now an estimated 2,600 emojis (and counting) and they are so commonly used that emojis even had their own feature film this summer, The Emoji Movie (albeit to questionable reviews).
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More On Maryland Earned Sick and Safe Leave – Enforcement Delay and Collective Bargaining Agreements
Today, January 23, 2018, Senator “Mac” Middleton filed a bill to postpone for 60 days the enforcement of Maryland’s new sick and safe leave (SSL) law by the state Commissioner of Labor and Industry. Given the law’s effective date of February 11, 2018, this means that enforcement would begin on April 12, 2018. We strongly note, however, that compliance – including the commencement of SSL accrual – is still required as of the February 11 effective date.
Continue Reading More On Maryland Earned Sick and Safe Leave – Enforcement Delay and Collective Bargaining Agreements
EEOC, NLRB and DOL Shutdown Contingency Plans – The 2018 Edition
Here we are again on the brink of another possible federal government shutdown, and employers may be wondering how it may impact them. The last time, during the 2013 federal government shutdown, we provided a summary of the shutdown contingency plans for the major employment-related agencies – the Department of Labor (DOL) (which includes the Occupational Safety and Health Administration (OSHA) and the Wage-Hour Division (WHD)), the National Labor Relations Board (NLRB), and the Equal Employment Opportunity Commission (EEOC). So we thought we’d provide you with an updated summary of these plans, which set forth what the agencies will and will not do if there is an actual shutdown.
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The Federal Government Is Challenging State Legalization of Marijuana – What Does This Mean for Employers?
Only days after California started selling recreational pot, which had been legalized under state law, CNN reported that Attorney General Jeff Sessions will announce that he is rescinding Obama-era guidance that had set forth a policy of federal non-interference with state legalization laws. This action further complicates an already confusing situation for employers struggling with how to navigate the battling federal and state laws on the workplace impact of marijuana use.
Continue Reading The Federal Government Is Challenging State Legalization of Marijuana – What Does This Mean for Employers?