Snow Days & Employee Pay (or Not)

Oregon’s recent snow “event” is a good reason for employers to familiarize themselves with wage and hour issues implicated by weather-related work closures.

Generally, hourly employees are not entitled to pay for hours they do not work.  If the office closes for weather-related reasons, hourly employees do not get paid.  Employers can choose to pay employees for days when the office is closed because of the weather, but are not legally obligated to do so.  Employers can also allow employees to make-up missed time by working extra hours or on weekends.  Where this option is provided, employers need to make sure employees keep track of “extra” time worked, take breaks as required, and do not end up working unauthorized overtime.

For exempt employees, pay will depend upon whether the employer closes the office. If the office is closed, the employer must pay exempt employees their full salary.  If, however, the office is open, but an exempt employee elects to stay home because of the weather, the employer does not have to pay the exempt employee for the full-day absence because the employee is absent from work for personal reasons other than sickness or disability.  The exempt employee could choose to use PTO or vacation to get paid for the full-day absence, but the employer is not required to pay the employee.

Employers also need to be mindful of whether employees are working from home on days when the office is closed because of bad weather. Hourly employees must keep track of time worked from home so they can be paid for that time, and exempt employees who choose to work from home rather than traveling to the office, should be paid their full salary.

The last storm is a great excuse for employers to review and update inclement weather policies to reflect how weather-related absences will be treated.

 

EEOC Seeks Public Input on Unlawful Harassment Enforcement Guidance

On January 10, 2017, the EEOC published proposed enforcement guidance on unlawful harassment.  The guidance, designed for employers and employees, sets forth the EEOC’s views on federal harassment law, and provides explanatory examples and recommended  practices for employers to follow.  The EEOC is accepting public comment on  the proposed guidelines until February 9, 2017.  We will update the blog once the final version is released. 

https://www.regulations.gov/docket?D=EEOC-2016-0009

Oregon’s Paystub Law, Updated

Back in October we blogged about the new Oregon law that requires an itemized time and pay statement to accompany employee paychecks.  Since the law went into effect on January 1, 2017, the two required items that appear to be missing from most paystubs are: (i) the employer’s business registry number or business identification number; and (ii) language indicating whether the employee is paid by the hour, shift, day or week, or on a salary, piece or commission basis.

Employers are advised to check their January paystubs for compliance and itflisted items are missing, contact your payroll company or correct your paystubs internally.

The new law is here: https://www.oregonlegislature.gov/bills_laws/lawsstatutes/2016orLaw0115.pdf

 

 

 

Dorothy! Dorothy! It’s a data breach!

A federal judge in the District of Kansas has permitted a class action lawsuit to proceed against an employer accused of failing to take adequate safeguards to prevent a data breach allegedly exposing the personal information of approximately 2,000 employees.  The lead plaintiff alleges that the data breach resulted in the filing of a fake tax return in her name, which caused a refund check to be sent to the fraudster who submitted the return (such scams are on the rise).  This case serves as a reminder to comply with best practices and legal requirements for safeguarding the personal information of employees — or anyone who provides personal information, such as customers or medical patients.  We are happy to assist in this area.  The case is captioned Hapka v. CareCentrix, Inc., D. Kan. No. 2:16-cv-02372-CM-KGG, and the order is available using this link.

DOL Appeal to be Expedited

The Fifth Circuit granted the DOL’s request to expedite its appeal of the lower court’s injunction which enjoined the new overtime rule from going into effect.  The DOL’s opening brief is due on December 16, opposition is due January 17, and the DOL’s reply brief is due January 31st.  Oral argument will take place sometime after January 31st – which means that the DOL, under the Trump Administration, could opt to drop the appeal (or take other action obviating the need for oral argument and subsequent proceedings).

SHRM also suggests that Congress might use the Congressional Review Act to revoke the DOL regulations.  More on that (and a little civics lesson) can be found here:

https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/congressional-review-act-overtime-rule-expedited-hearing.aspx

 

 

 

 

DOL Requests Overtime Appeal to be Expedited

The DOL has asked for its appeal of the district court’s injunction of the DOL overtime rule to be heard on an expedited basis.  The proposed briefing schedule would require all briefing to be completed by February 7, 2017.  The DOL requested that the Fifth  Circuit rule on its request to expedite by December 8, 2016.

This does not change the uncertainty faced by employers.  However, if the motion to expedite is granted, it will speed up the resolution of the dispute.

 

DOL Appeals Overtime Rule Injunction

Yesterday, the same day the new overtime rule was to go into effect, the DOL filed a notice of appeal challenging the Texas federal court’s decision to put a hold on the new overtime rule.  The appeal will be heard by the Fifth Circuit Court of Appeals in New Orleans.   The timing of the appeals process will depend upon whether the DOL seeks expedited review, and the immediate impact on employers will depend, in part,  upon whether the  DOL obtains a stay of the injunction (which would mean the new overtime rule would go into effect during the pendency of the appeal).

More soon.

Here is the DOL’s announcement: https://www.dol.gov/whd/overtime/final2016/litigation.htm

 

 

DOL Overtime Rule Blocked, Part 2

Last week, we posted about the injunction that stops the DOL’s new overtime rule from going into effect on December 1, 2016. In Judge Mazzant’s decision, he found the significant increase to the salary level (without changing the duties tests) “creates essentially a de facto salary test… [and that] Congress did not intend salary to categorically exclude an employee with [Executive, Administrative, Professional] duties from the exemption.”  Basically, since the FLSA exemptions depend on BOTH the duties employees perform and on the salary they receive, the Court found the DOL exceeded its authority under the FLSA by basing the rule solely on a change to the salary level.

There is no clear answer on what employers who have already reclassified employees from exempt to non-exempt should do following the decision. In fact, the only consistent answer seems to be that employers are in limbo and should be careful about making further changes until the issue is resolved by the courts, by some kind of legislative compromise, or some executive action.

We will continue to update the blog on this issue.

DOL Overtime Rule Blocked (For Now)

Yesterday, the Texas Federal Court issued a preliminary injunction blocking the DOL’s new overtime rule from going into effect on December 1, 2016.  Because this is only a preliminary ruling, and because of the change in the administration, it is unclear what will ultimately happen with the DOL overtime rule.  The DOL is considering an appeal, and there is speculation in the media that parts of the new rule will survive.  Until the future of the rule is resolved, employers who have already increased employee salaries to meet the new rule’s requirements, or reclassified exempt employees as non-exempt, should not reverse these changes.  However, employers who were waiting until December 1st to take action, are now in limbo and should follow existing rules regarding criteria for exemptions until further developments in the case.

We will keep the blog updated on developments.