On June 15, 2020, the Supreme Court of the United States, in Bostock v. Clayton County, Georgia, held that gay and transgender employees may not be fired merely for being gay or transgender. In a 6-3 decision, the Court held that termination on the basis of gender identity or sexual orientation violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of sex, race, color national origin, or religion.

The Court only addressed the issue of whether termination on the basis of gender identity or sexual orientation is prohibited under Title VII. However, employees and small businesses should be aware that it is a near certainty that all forms of discrimination on the basis of sexual orientation or gender identity, including harassment, pay disparity, and discrimination in hiring and promotion decisions, are now prohibited under Title VII.

Title VII only applies to employers with more than 15 employees, and current Ohio and Kentucky jurisprudence has held that their respective antidiscrimination laws (Revised Code 4112.02, et seq. and Kentucky Revised Statutes 344, et seq.) do not prohibit discrimination on the basis of sexual orientation or gender identity. As a result, it is possible that businesses with less than 15 employees will not be affected by Bostock. However, Ohio and Kentucky courts normally interpret their states’ antidiscrimination laws in a manner consistent with the interpretation of Title VII. Therefore, there is a very good chance that the protections now afforded to gay and transgender persons by Title VII will also be applied to smaller employers in Ohio and Kentucky.

The employment attorneys at the Finney Law Firm take pride in staying up-to-date with recent developments in employment law, including the recent Covid-19 leave requirements and expansion of Title VII protection. Employers and employees should consult experienced legal counsel to be fully advised of their rights and obligations under the law. For assistance with these matters, consult  Matthew S. Okiishi (513.943.6659) and Stephen E. Imm (513.943.5678).

Attorney Matthew S. Okiishi

On April 6, 2020, the Department of Labor published its temporary rules for the Families First Coronavirus Response Act (“FFCRA”). Our firm has written prior entries regarding the FFCRA and Covid-19’s impact on the workplace, and I previously noted that a significant portion of the FFCRA would require additional federal guidance to understand. The rules define qualifying reasons for leave, employer and employee notice obligations, and the small business exemption.

Key Definitions

Under the new rules, a “Child Care Provider” is a provider who receives compensation for providing child care services on a regular basis and is licensed under state law. However, a Child Care Provider does not need to be compensated or licensed if they are a family member or friend who “regularly cares for the employee’s child.”

“Place of Care” means the physical location where care is provided for the Employee’s child while the employee works for the employer.

“Son or Daughter” includes biological, adopted, and foster children. It also includes stepchildren, legal wards, or the child of a person standing in loco parentis. Son or Daughter can also include persons over the age of 18 when that person is incapable of self-care because of a mental or physical disability.

“Subject to a quarantine or isolation order” includes the “shelter in place” or other general orders issued by states and municipalities in response to the Covid-19 epidemic, and includes when a governmental authority has advised certain categories of citizens to shelter in place.

Application to Emergency FMLA Leave

The qualifying reason for Emergency FMLA leave is narrow, applying only to employees who are unable to work or telework due to the need to care for a Son or Daughter if the child’s school or Place of Care is closed or the Child Care Provider is unavailable due to the Covid-19 pandemic. But as stated previously, the definition of a “Child Care Provider” is quite broad, including family members and other persons who regularly care for a child out of a neighborly or familial bond. Similarly, a “Son or Daughter” includes the full spectrum of children and persons who are regularly under the care of a parent. As such, it would be improper for an employer to deny EFMLA leave to an employee because the child is not necessarily a biological relative or the Child Care Provider is not a licensed day care.

Paid Sick Leave Implications

The six reasons for paid sick leave have also been impacted by the new regulations:

1. Subject to a federal, state or local quarantine or isolation order related to COVID-19.

Employees are only considered to be “subject to a quarantine or isolation order” when, but for being subject to the order, they would be able to perform work that is otherwise allowed by their employer. When the order shuts down the employer’s operations, an employee is not entitled to paid sick leave.

2. Advised by a health care provider to self-quarantine due to COVID-19 concerns.

A health care provider has advised self-quarantine only when the advice is based on a belief that the employee (1) has Covid-19; may have Covid-19, or the employee is particularly vulnerable to Covid-19 and (2) this advice prevents the employee from being able to work at the employer’s workplace or through telework.

3. Experiencing COVID-19 symptoms and seeking medical diagnosis.

The employee must be experiencing a fever, dry cough, shortness of breath, or any other recognized Covid-19 symptom from the CDC, and must be seeking a medical diagnosis. Paid sick leave under this reason is limited to the time the employee is unable to work because of their affirmative steps to obtain the diagnosis.

4. Caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns.

“Individual” is an immediate family member, person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for them. Employees may only take leave under this reason if, but for a need to care for the individual, the Employee would be able to perform work for their employer at the workplace or through telework.

5. Caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or

Subject to the same EFMLA definitions, an employee may only utilize this reason if no other suitable person is available to care for the Son or Daughter during the period of such leave.

6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services (“HHS”) in consultation with the Secretary of the Treasury and the Secretary of Labor.

At the time of this posting, it does not appear that HHS has provided other “substantially similar conditions.”

Intermittent leave and Notice

Employees may only take intermittent leave under the FFRCA’s Emergency FMLA or paid sick leave provisions when the employer agrees. However, an employer may be required to grant “intermittent” leave when an employee is actively seeking a medical diagnosis, as doctor’s visits typically require employees to leave their worksite or telework desk.

Because of the rapid development of Covid-19 symptoms and an employee’s need for leave, the Department of Labor is not requiring employees to notify employers about their need for emergency FMLA or paid sick leave as soon as practicable. Instead, the Department generally advises employers to be proactive in notifying employees of the failure to give notice and an opportunity to provide documentation prior to denying the request for leave. Notice may only be required after the first workday where the employee takes EFMLA or paid sick leave.

From a content perspective, it is reasonable for an employer to require enough information to determine whether the requested leave is covered. This documentation is generally limited to: (1) the employee’s name; (2) dates for which leave is requested; (3) qualifying reason; and (4) a statement (oral or written) that the employee is unable to work because of the qualified reason for leave. For specific reasons, such as quarantine, doctor’s orders, or care for a child, additional documentation may be required. Employers are also permitted to seek information that is needed to support tax credits pursuant to the FFCRA.

Small Business Exemption

Employers with less than 50 employees may be exempt from providing paid sick leave or emergency FMLA leave when the imposition of such requirements would “jeopardize the viability of the business as a going concern.” An employer is entitled to this exemption when an authorized officer has determined that:

  1. The leave requested would result in the business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services by the employee or employees requesting leave and these labor or services are needed for the small business to operate at a minimal capacity.

Small businesses must document an exemption determination internally and maintain the records in its files.

Conclusion

The FFRCA has changed the way business is done in this country, albeit on a temporary basis (The FFRCA sunsets on December 31, 2020). In approaching requests for leave, the law and regulations contemplate that employers will engage in a thoughtful and well-documented manner and avoid knee-jerk reactions or blanket assertions of “business viability.” Employers of all sizes would be well-served to engage competent legal counsel to assist in navigating the FFRCA’s new requirements.

The Finney Law Firm’s labor and employment attorneys are well-versed in the rights and obligations of both employers and employees, including the rapidly evolving COVID-19 changes. For assistance with these matters, consult  Matthew S. Okiishi (513.943.6659) and Stephen E. Imm (513.943.5678).

Last week, I wrote a comprehensive overview of the new federal requirements for paid sick leave and family medical leave under the Families First Coronavirus Response Act (the “Act”). Since then, the Department of Labor has published its first guidance on the application and enforcement of those provisions.

The Effective Date of the Act Has Changed:

The Act states that its provisions shall go into effect within 15 days of enactment. As the Act was signed by President Trump on March 18, 2020, I took a conservative approach and wrote that the new paid sick leave and family medical leave provisions would be effective on April 2, 2020. Per the new Department of Labor guidelines, the Act will be effective on April 1, 2020, one day ahead of schedule.

Under-the-radar sick time provision:

Nestled in to the Act’s paid sick leave provision is a prohibition against employers requiring the use of other paid sick leave (this includes ALL accrued time off, whether vacation time, bereavement, sick time and other time off. In many companies this is known in their personnel policy as  “PTO” or “Paid Time Off”). This is an easy provision to run afoul of, and employers should consider consulting with competent legal counsel to ensure compliance with the Act.

Small Business Exemption Still Vague, Non-Enforcement Grace Period:

The Act exempts employers with less than 50 employees from its requirements if compliance would jeopardize the viability of the business. Department of Labor regulations on the topic are forthcoming and should be released in April 2020.

In an effort to help employers navigate this uncertainty, the Department of Labor’s Field Assistance Bulletin has instructed its officers to not enforce the Act’s provisions until April 17, 2020. The Department of Labor will not bring about any enforcement actions provided that an employer makes “reasonable, good faith efforts to comply with the Act.” Employers will only be found to behave reasonably and in good faith when all of the following are satisfied:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable;
  2. The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”); and
  3. The Department receives a written commitment from the employer to comply with the Act in the future.

Employers who may require use of the small business exemption should consult with competent legal to prepare for the upcoming regulations and ending of the grace period. Employers should also be aware that the Field Assistance Bulletin does not limit the right or ability of an employee to bring a private action for violations of the Act.

Conclusion

Our labor and employment attorneys are well-versed in the rights and obligations of both employers and employees, including the rapidly-evolving COVID-19 changes. For assistance with these matters, consult Stephen E. Imm (513.943.5678) and Matthew S. Okiishi (513.943.6659).

Attorney Matthew S. Okiishi

In the wake of the Covid-19 pandemic, Congress and the Trump Administration have greatly expanded the protections available to workers affected by the disease. On April 2, 2020, both the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and Emergency Paid Sick Leave Act (“EPSLA”) will go into effect, and both will remain in effect until December 31, 2020.

Emergency Family and Medical Leave Expansion Act

The EFMLEA applies to all employers with fewer than 500 employees. Employees who worked for the employer for at least 30 days prior to the designated leave are entitled to up to 12 weeks of job-protected leave. However, the reason for the emergency leave is especially narrow, and only applies to an employee who is unable to work or telework due to the need to care for the employee’s child if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. Due to the proactive measures taken by Governor Mike DeWine, many employees in Ohio may find themselves covered under the EFMLEA.

Employees who qualify for leave under the EFMLEA are entitled to partially paid leave. For the first 10 days of the leave, employees are not entitled to pay. However, employees can substitute accrued paid leave or EPSLA (explained below) to bridge this gap. After the 10-day period, a full-time employee is entitled to pay at a rate two-thirds their regular rate, capped at $200 per day and $10,000 aggregate. Hours for part-time employees are to be calculated as the average of the hours worked in the preceding six months.

At the conclusion of the leave, employers with 25 or more employees must return the employee to the same or equivalent position. Employers with fewer than 25 employees are excluded from the requirement if the employee’s position no longer exists following leave due to an economic downturn. However, the employer must still make a reasonable attempt to return the employee to an equivalent position.

The EFMLEA further permits the Secretary of Labor to exclude emergency responders and healthcare providers from eligibility, and to exempt small businesses (defined as employing less than 50 employees) if the leave would jeopardize the viability of their business.

Emergency Paid Sick Leave Act

The EPSLA applies to employers with fewer than 500 employees, but healthcare providers and emergency responders may elect to be exempt. Employees qualify for paid sick leave under the EPSLA if the employee is:

  1. subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. advised by a health care provider to self-quarantine due to COVID-19 concerns;
  3. experiencing COVID-19 symptoms and seeking medical diagnosis;
  4. caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
  5. caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
  6. experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Qualifying employees are generally entitled to 80 hours of paid sick leave at their regular rate under the EPSLA (employees who are taking sick leave for the fourth, fifth, or sixth listed reason above are entitled to a two-thirds pay rate). The paid sick leave is capped at $511 per day for the employee’s own use, and $200 to care for others.

A Word of Caution

Because the EFMLEA amends the Family Medical Leave Act, the anti-retaliation and discrimination provisions of the same apply. It is illegal for employers to interfere with employees exercise of their rights under the FMLA or to otherwise discriminate against them.

Similarly, the EPSLA prohibits employers from requiring employees to use other paid leave provided by the employer to the employee before the employee uses EPSLA sick time. Further, the EPSLA prohibits employers from retaliating or discriminating against employees who elect to utilize the EPSLA.

Conclusion

Our labor attorneys are well-versed in the rights and obligations of both employers and employees, including the rapidly-evolving COVID-19 changes. For assistance with these matters, consult Stephen E. Imm (513.943-5678) and Matthew S. Okiishi (513.943-6659).

Tipping employees in various service professions (barbering, food service, etc.) is as American as apple pie. Unfortunately, the retention of employee tips by employers is a less common, but nonetheless pervasive, practice. Both employers and employees would do well to note that an employer’s retention of any employee tips (except as part of a valid “tip pool”) is illegal, as the 2018 amendments to the Fair Labor Standards Act (“FLSA”) make clear.

It was not always this way. For example, prior to the 2018 amendments, federal appellate courts were split on the issue of whether an employer could keep employee tips if the employer paid the employee above the minimum wage.

But the law has changed, and both employers and employees should know that employees have a right to demand and receive the tips paid by customers. The gains that employers can expect from skimming tips are simply not worth the risk of being caught in a lawsuit. In addition to requiring employers to pay the full amount of improperly withheld tips, the FLSA further entitles employees to additional liquidated damages, which is an amount equal to the improperly withheld tips, plus attorneys’ fees  and expenses. (This means a court award of double the actual damages of the wrongfully withheld tips plus the attorneys fees and expenses of the litigation.)

Because the FLSA is a federal law, it applies to nearly all employers and employees in the United States, including those in the Cincinnati tri-state area (Ohio, Kentucky, and Indiana).

If you are an employee who has been shorted on their tips or an employer who needs to update its policies to accommodate the requirements of the FLSA, consider speaking to one of the labor and employment attorneys at the Finney Law Firm: Stephen E. Imm (513-943-5678) or Matt Okiishi (513-943-6659).

The U.S. Department of Labor has changed the salary level for exempted salaried employees. A prior iteration of this rule was famously (at least to employment law attorneys) declared illegal in 2016. However, the Department has been undeterred, and the new rule, which will go in to effect on January 1, 2020, has massive implications for businesses who classify employees as overtime exempt under the “white collar” or “EAP” exemption.

 

The white collar/EAP exemption exempts from the minimum wage and overtime pay requirements any employee employed in a bona fide executive, administrative, or processional capacity. In order to satisfy the exemption, an employee must: (1) be paid a predetermined and fixed salary that is not subject to reduction because of the quality or quantity of work performed (the “salary basis” test); (2) the salary must meet a minimum specified amount (the “salary level” test); (3) and the employee’s job duties must primarily involve executive, administrative, or processional duties (the “duties” test).The new rule changes the “salary level” test. Until January 1, 2020, the required salary must exceed $455 weekly ($23,660 annually). However, after January 1, 2020, the salary requirement will be raised to $684 weekly ($35,568 annually). To somewhat ease the burden this imposes on employers, the Department has also permitted employers to count nondiscretionary bonuses, incentives, and commissions toward up to 10 percent of the salary level ($2,556.80 annually).

As a result of these changes, on January 1, 2020, employers who do not raise their salaries to meet the new minimum, but otherwise satisfy the white collar/EAP exemption will find themselves exposed to potential overtime and/or minimum wage liability. If you are concerned that your pay policies may be out of compliance, consider speaking to one of the employment law attorneys at the Finney Law Firm: : Stephen E. Imm (513-943-5678) or Matt Okiishi (513-943-6659).

 

While discussing pay may foment worker dissatisfaction and be considered rude in polite circles, an employer may not prohibit the discussions from taking place or punish an employee for discussing pay or benefits with their coworkers. These discussions are protected by the National Labor Relations Act (“NLRA”). Among other things, the NLRA protects the right of workers to engage in “concerted activity,” which includes discussing wages, benefits, and other conditions of employment. This right to engage in “concerted activity” exists regardless of whether the workplace is unionized or the employee’s membership in a union. As a result, employers who prohibit, punish, or discharge employees for discussing their pay with coworkers are subject to discipline from the National Labor Relations Board (“NLRB”).

Because the penalties levied by the NLRB can be onerous, employers should be especially cautious when implementing policies, whether verbal or written in a handbook, which prohibit or dissuade employees from discussing their pay or benefits with coworkers. While most of these policies are ostensibly well meaning and meant to promote or foster synergy, collegiality, and comradery, the intent of the policy is of little value in defending against an unfair labor practice.

If you believe that your employment policies may not be compliant with the labor and employment laws, consider speaking to one of the qualified labor and employment attorneys at the Finney Law Firm: Stephen E. Imm (513-943-5678) or Matt Okiishi (513-943-6659).

 

Can an employer make deductions from employee wages?

On the face it, the answer seems obvious: Of course! Employers make deductions from employee wages on a routine basis. Common examples that come to mind are for federal and state tax withholdings, or for court-ordered garnishments. Sometimes, employees authorize other deductions, such as for insurance or union dues. All of these examples share a common trait: They exist for the benefit of the employee or a third party.

But what about when an employer unilaterally docks an employee’s wages for items that benefit the employer, such as for a uniform, a background check, or for damage to employer property caused by an employee?

Generally, the Fair Labor Standards Act, the law governing wages on a federal level, permits unilateral deductions that benefit the employer provided that those deductions do not reduce the employee’s wages below the minimum wage. This rule applies to both overtime non-exempt and exempt salaried employees, and employers who routinely reduce the wages of salary exempt employees below the federal requirement of $455 per week run the risk of losing the exemption.

While federal law may permit deductions from employee wages, applicable state laws can and often do restrict the ability of employers to make deductions that benefit the employer.  Ohio law prohibits employers from reducing the wages of employees for tools, damaged machinery, and uniforms absent written agreement with the employee. Going further than Ohio, Kentucky prohibits employers from deducting wages for things like breakage or property damage even when the employee authorizes the deduction. And of course, in both Ohio and Kentucky, employers should be wary of making deductions that reduce an employee’s wage to below the minimum wage.

The legality of deductions from employee wages is fact specific. Both employers and employees should be wary of wage deductions, as overzealous deductions could prove costly for pocketbooks and bottom lines.