When President Obama directed the Department of Labor last year to make its Fair Labor Standards Act overtime regulations simpler for businesses and workers to understand, many observers expected the agency to propose comprehensive revisions to the confusing “duties tests.” After all, the duties tests, which are part of the criteria an employer must satisfy to show that an employee is exempt from FLSA’s overtime and minimum wage requirements, are famous for their imprecision and indifference toward the realities of the American workplace.
With all the recent media coverage of Bruce Jenner’s transition to Caitlyn Jenner, employers should be aware that the issue of transgender employees in the workplace is becoming more and more common. Regardless of one’s view on the subject, employers need to realize that they can find themselves in hot water by improperly dealing with a transgender employee. A recent case filed by the EEOC illustrates this problem.
W.Va. Code § 23-4-15 provides the statute of limitations for filing a claim for Workers’ Compensation dependent’s death benefits in West Virginia. In 1986, the Legislature adopted a six month period in which applications for these benefits may be filed. The code section specifically provides that a dependent must file for death benefits “within six months from and after the injury or death.” The code section further provides that such time limitation is a condition of the right and is jurisdictional. In April 2015, the West Virginia Supreme Court specifically found that this code provision did not intend to completely bar a claim for dependent’s benefits when, due to the medical examiner’s delay in preparing an autopsy report, there was no indication that an employee’s death was work-related until eight months after the death.
Traditionally, the United States Court of Appeals for the Fourth Circuit Court – which encompasses the West Virginia – has been regarded as being an employer-friendly jurisdiction when it comes to deciding cases arising under federal employment laws. However, that gradually has been changing over the last handful of years, and there’s no greater example of that trend than the recent case of Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015), when the Fourth Circuit ruled that a single, isolated instance of harassment may give rise to an actionable hostile work environment claim under Title VII. Because the opinion lowered the standard for when employers may be liable for sexual harassment, it’s very important for employers to be familiar with it.
A few months ago, my colleague Jana Grimm wrote a blog entry outlining the latest in the NLRB’s ongoing aggressive reviews of employer rules and policies. In her post, which can be found here, Jana outlined Memorandum GC 15-04, a memorandum from the NLRB’s general counsel providing guidance on the issue of employer handbook policies. Citing Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004), which states that work rules can violate Section 8(a)(1) of the NLRA if the rule has a chilling effect on activity protected by Section 7, GC 15-04 gives several examples of “dos” and “don’ts” of policies governing topics such as social media, confidentiality, intellectual property, and contact with individuals outside the company.
Reductions in force are difficult for both employers and employees. Generally, employers only undertake such a drastic step due to decreased demand for products or services, or other economic difficulties. When those circumstances occur, management must evaluate the needs of the company and often release employees who under better economic circumstances would continue their tenures of employment. Employees affected are likely to be upset by the sudden loss of their livelihood and the seemingly nebulous criteria for selecting employees to be included. This can lead to litigation, creating further economic burden to the company.
It has been rumored for some time that the Department of Labor’s new overtime regulations would raise substantially the salary a worker must be paid in order to qualify for a white collar exemption. Monday evening, President Obama confirmed that the new DOL regulations will raise the required salary from $23,660 a year — where it has stood since 2004 — to $50,400 a year. The President said this change will expand overtime to five million additional workers, but some estimates place the number of affected workers much higher.
One of the ways an employee can prove a serious health condition entitling him/her to the protections of the FMLA is to have an illness, injury, impairment, or physical condition which involves inpatient care in a hospital, hospice, or residential medical care facility. Inpatient care is defined in FMLA regulations as an overnight stay. While the meaning of “overnight stay” would appear to be straightforward, that is not necessarily the case. Recently, the Third Circuit Court of Appeals – which has jurisdiction over cases in Pennsylvania and New Jersey – was called upon to interpret this term in a case of first impression in that Court.