| Special #65 - September 1, 2020 |
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From Aug 25, 2020 |
| HR and Employment Law News |
| - USDOL(WHD) - Employers’ obligation to exercise reasonable diligence in tracking teleworking employees’ hours of work. August 24, 2020- ¶47,237 DOL will hold public hearing on fiduciary rule proposal as requested during 30-day comment period — FEDERAL NEWS, Aug. 28, 2020 - HRDive BRIEF: Employee able to work without ADA accommodation may still be owed one, 1st Cir. says Sept. 1, 2020- ¶47,242 New WHD and ETA guidance address issues related to school reopening — AGENCY GUIDANCE, Sep. 1, 2020- Court revives Mr. Bostock's sexual orientation lawsuit - Georgia Department of Public Health COVID-19 Daily Status Report
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| | | | Employers’ obligation to exercise reasonable diligence in tracking teleworking employees’ hours of work.
August 24, 2020
FIELD ASSISTANCE BULLETIN No. 2020-5
MEMORANDUM FOR:
Regional Administrators
Deputy Regional Administrators
Directors of Enforcement
District Directors
FROM:
Cheryl M. Stanton
Administrator
SUBJECT:
Employers’ obligation to exercise reasonable diligence in tracking
teleworking employees’ hours of work.
This Field Assistance Bulletin (FAB) provides guidance regarding employers’ obligation under the Fair Labor Standards Act (FLSA or Act) to track the number of hours of compensable work performed by employees who are teleworking or otherwise working remotely away from any worksite or premises controlled by their employers. In a telework or remote work arrangement, the question of the employer’s obligation to track hours actually worked for which the employee was not scheduled may often arise. While this guidance responds directly to needs created by new telework or remote work arrangements that arose in response to COVID-19, it also applies to other telework or remote work arrangements. |
| | | Final Rule: Fluctuating Workweek Method of Computing Overtime
Final Rule: Fluctuating Workweek
On May 20, 2020, the U.S. Department of Labor announced a final rule that allows employers to pay bonuses or other incentive-based pay to salaried, nonexempt employees whose hours vary from week to week. The final rule clarifies that payments in addition to the fixed salary are compatible with the use of the fluctuating workweek method under the Fair Labor Standards Act (FLSA).
In the final rule, the Department:
- Adds language to 29 CFR 778.114(a) to expressly state that employers can pay bonuses, premium payments, or other additional pay, such as commissions and hazard pay, to employees compensated using the fluctuating workweek method of compensation. (The rule also states that such supplemental payments must be included in the calculation of the regular rate unless they are excludable under FLSA sections 7(e)(1)–(8)). The rule grants employers greater flexibility to provide bonuses or other additional compensation to nonexempt employees whose hours vary from week to week, and eliminates any disincentive for employers to pay additional bonus or premium payments to such employees.
- Addresses the divergent views expressed by the Department and courts―and even among courts―that have created legal uncertainty for employers regarding the compatibility of various types of supplemental pay with the fluctuating workweek method.
- Adds examples to 29 CFR 778.114(b) to illustrate these principles where an employer pays an employee, in addition to a fixed salary (1) a nightshift differential and (2) a productivity bonus.
- Revises the rule in a non-substantive way to make it easier to read, so employers will be able to better understand the fluctuating workweek method. Revised 29 CFR 778.114(a) lists each of the requirements for using the fluctuating workweek method, and duplicative text is removed from revised 29 CFR 778.114(c).
- Changes the title of the regulation from “Fixed salary for fluctuating hours” to “Fluctuating Workweek Method of Computing Overtime.”
The Notice of Proposed Rulemaking was available for public comment for 30 days. The Department received approximately 36 comments on the proposal, all of which are available to the public at www.regulations.gov.
Additional Information |
| | | ¶47,237 DOL will hold public hearing on fiduciary rule proposal as requested during 30-day comment period — FEDERAL NEWS,
Written by Pamela Wolf, J.D.
Aug. 28, 2020 from GEA HR Answers Now
On September 3 and, if necessary, on September 4, 2020, beginning at 9 a.m. EDT, the Employee Benefits Security Administration will hold a public hearing to consider issues related to its controversial proposed prohibited transaction exemption on Improving Investment Advice for Workers and Retirees. Since the publication of the proposed exemption on July 7, there has been considerable interest expressed about it, as well as several public comments requesting a hearing, according to the DOL’s August 25 Federal Registernotice.
The DOL said that it has decided to hold a public hearing on the proposed prohibited transaction exemption in order to give commenters an opportunity to present material factual issues that cannot be fully explored through written submission.
Storied history. The Trump Administration’s Labor Department refused to defend the arguably more stringent Obama-era fiduciary rule after a panel of the Fifth Circuit overturned it, even though it had been upheld by three district courts and the Tenth Circuit. As a result, the Fifth Circuit took action that closed off all other avenues that might have revived the rule: The appeals court denied the request of the Attorneys General of California, New York, and Oregon to intervene in the case in order to defend the rule through a rehearing en banc. The appeals court also denied AARP’s motion to intervene.
Proposed rule. In its announcement of the proposed rule, the DOL explained that the exemption offers a new prohibited transaction class exemption for investment advice fiduciaries that is based on an existing temporary policy adopted after the Fifth Circuit’s ruling. Under the proposal, investment advice fiduciaries would be able to provide more choices for retirement using "Impartial Conduct Standards," which the DOL described as:
- A best interest standard;
- A reasonable compensation standard; and
- A requirement to make no materially misleading statements.
- These standards align with those issued by the SEC.
Rollover advice. The proposed exemption would also implement the DOL’s views on when rollover advice could be considered fiduciary advice under ERISA and the Internal Revenue Code. Specifically, the proposed exemption would permit investment advice fiduciaries under both ERISA and the Code to receive compensation, including from advice to roll over assets from a Plan to an IRA, and to engage in principal transactions that would otherwise violate the prohibited transaction provisions of ERISA and the Code.
The exemption would apply to registered investment advisers, broker-dealers, banks, insurance companies, and their employees, agents, and representatives that are investment advice fiduciaries. The DOL says the exemption would include protective conditions designed to safeguard the interests of plans, participants, beneficiaries, and IRA owners.
Public hearing. At the public hearing on September 3 (and September 4 if necessary), testimony will be limited to individuals or parties who have already submitted, in accordance with the instructions included in the proposed prohibited transaction exemption, a comment or hearing request on the proposed exemption before the close of the comment period on August 6, only 30 days after the proposal was published in the Federal Register. Due to the COVID-19 pandemic, the hearing will be held virtually; there will be no in-person testimony.
Requests to testify at the hearing must be submitted to the DOL on or before August 28—only three days after the public hearing was formally announced. The request should include an outline of the proposed issues to address in the testimony. Requests must be submitted through the Federal eRulemaking Portal: www.regulations.gov at Docket ID number: EBSA–2020–0003. Follow instructions for submitting comments.
Further information is included in the DOL’s notice.
Source: Written by Pamela Wolf, J.D. |
| | | | | HRDive BRIEF: Employee able to work without ADA accommodation may still be owed one, 1st Cir. says
AUTHOR Lisa Burden PUBLISHED Sept. 1, 2020
Dive Brief: - An employee who can, with some difficulty, perform the essential functions of a job without accommodation remains eligible to request and receive a reasonable accommodation, the 1st U.S. Circuit Court of Appeals said Aug. 21, vacating a jury verdict (Bell v. O'Reilly Auto Enterprises, LLC dba O'Reilly Auto Parts, No. 18-2164 (1st Cir., Aug. 21, 2020)).
- A district court erred when it instructed a jury that, for an employee with a disability to advance a failure-to-accommodate claim, he needed to demonstrate that he needed an accommodation to perform the essential functions of his job, the appeals court said. In doing so, it incorrectly limited liability for the employer, O'Reilly Auto Enterprises, under the Americans with Disabilities Act (ADA).|
- The court ordered a new trial for the plaintiff, a store manager who had requested an hours restriction to accommodate a disability.
Dive Insight:
The Americans with Disabilities Act (ADA) forbids discrimination based on disability and also requires that employers provide reasonable accommodations to workers with disabilities unless the employer would suffer an undue hardship as a result.
Once an employee has requested an accommodation, employers are generally encouraged to engage in an interactive process to identify possible accommodations. While a failure to engage in the process isn't a violation of federal law, it can serve as evidence of discrimination, experts have said. And showing that an employer caused a breakdown in the interactive process, including ending it prematurely or refusing to engage in the process altogether, can serve as evidence of disability discrimination.
Many employers fail to counter a suggested accommodation if they can't give an employee the requested accommodation, experts say. Employers should offer a reasonable alternative even if they think the employee will reject it, Michelle Seldin Silverman, a partner at Morgan Lewis, previously told HR Dive. Experts also suggest that HR be trained on the elements of a "good, interactive process" and that managers be trained to identify requests that trigger the employer's ADA responsibilities and to escalate the requests when appropriate.
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¶47,242 New WHD and ETA guidance address issues related to school reopening — AGENCY GUIDANCE,
Sep. 1, 2020
The Labor Department’s Wage and Hour Division (WHD) and Employment and Training Administration (ETA) have announced the release of new guidance related to the reopening of schools.
WHD guidance. The WHD published new frequently asked questions (FAQs) for workers and employers about qualifying for paid leave under the Families First Coronavirus Response Act (FFCRA) as it pertains to the reopening of schools.
The guidance explains eligibility for paid leave relative to the varied formats and schedules schools have announced as they plan to reopen, including blending in-person with distance learning. The information explains the benefits and protections available under both the paid sick leave and the expanded family and medical leave provisions of the FFCRA.
New FAQs. The new guidance adds these questions and answers:
Question: My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances?
Answer: Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively "closed" to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.
Question: My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances?
Answer: No, you are not eligible to take paid leave under the FFCRA because your child’s school is not "closed" due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. See FAQ 63.
Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively "closed" to your child on those days.
Questions: My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances?
Answer: Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child's school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations. See FAQ 98 and 99.
ETA guidance. The new ETA guidance (Unemployment Insurance Program Letter No. 16-20, Change 3) provides states with information about the eligibility for Pandemic Unemployment Assistance (PUA) under the CARES Act of individuals who are caregivers. Similar to WHD’s FAQs, the ETA’s guidance explains when parents and caregivers may be eligible for PUA under various circumstances related to their child’s school’s reopening plans.
The guidance explains how states should evaluate an individual’s eligibility for PUA when:
- A child or other person in their household for whom the individual is the primary caregiver attends a school operating on an alternate day basis;
- The individual chooses remote learning for their child when in-person instruction is available; and
- The school remains closed as a direct result of the coronavirus.
Further information. The new guidance documents complement a library of resources and tools that both the WHD and ETA provide for workers and employers as they navigate the changes in the workplace brought by the COVID-19 pandemic. Resources related to FFCRA paid leave include extensive questions and answers, an online tool for employees to determine their eligibility for paid leave, and short videos and infographics explaining the law’s benefits.
*The WHD provides information on common issues that employers and employees face when responding to the coronavirus and its effects on wages and hours worked under the FLSA and on job-protected leave under the FMLA at https://www.dol.gov/agencies/whd/pandemic.
*The ETA provides an extensive list of resources relating to the pandemic at https://www.dol.gov/agencies/eta/coronavirus and guidance about unemployment insurance at https://www.dol.gov/coronavirus/unemployment-insurance.
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| | | Court revives Mr. Bostock's sexual orientation lawsuit
BY ROBIN SHEA ON 8.28.20
POSTED IN DISCRIMINATION, GENDER IDENTITY DISCRIMINATION, SEXUAL ORIENTATION
In light of his Supreme Court win in June.
The U.S. Court of Appeals for the Eleventh Circuit has revived a Title VII lawsuit filed by Gerald Bostock, who had sued Clayton County, Georgia, alleging that the county terminated his employment because he was gay.
The lawsuit was was dismissed at the outset because the federal court had found that sexual orientation discrimination was not prohibited by Title VII. Title VII prohibits discrimination because of, among other things, "sex," but does not reference sexual orientation discrimination. The 11th Circuit agreed, affirming the dismissal in 2018.
The rest, as we say, is history. Mr. Bostock and the parties in two other Title VII cases (one other alleging sexual orientation discrimination, and another alleging gender identity discrimination) took it to the U.S. Supreme Court, which ruled this past June that Title VII's prohibition on "sex" discrimination also encompassed discrimination based on sexual orientation and gender identity.
The plaintiffs in the other two cases had won in the lower courts. Mr. Bostock was the only plaintiff who had lost.
Now he will have the chance to pursue his claim. Of course, the county can still win if it can show that Mr. Bostock was terminated for a legitimate reason unrelated to his sexual orientation.
Tags: Bostock v. Clayton County, EEOC v. R.G. & G.R. Harris Funeral Homes, LGBT, Sexual Orientation, Title VII, Zarda v. Altitude Express
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Georgia Department of Public Health COVID-19 Daily Status Report: Updated 3pm daily
Update from 09/01/2020 (State of Georgia) - Confirmed Cases 272,697
- Deaths 5,733
- Hospitalizations 24,847
- ICU Admissions 4,537
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Georgia Employers' Association |
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