Monthly Archives: June 2019

June 28, 2019

Avoiding Pitfalls When Trying to Offer Benefits That Exceed the FMLA’s Mandate

By Matthew Cecil

On March 14, 2019 the Department of Labor issued an opinion letter considering whether employers violate the Family Medical Leave Act (FMLA) by expanding the amount of leave given to an employee before designating the leave as protected by the FMLA. This article considers two common FMLA pitfalls addressed in the Department of Labor’s March 14, 2019 Opinion Letter (FMLA2019-1-A): (1) communicating benefits to employees that exceed FMLA requirements; and (2) waiting to designate leave as protected by the FMLA.

Communicating Information to Employees About FMLA Benefits and Benefits That Exceed the FMLA

The FMLA requires employers to provide covered employees with up to 12 weeks of job-protected, unpaid leave each year for qualifying family and medical reasons (or up to 26 weeks for qualifying military caregiver leave).

June 20, 2019

U.S. DOL Proposes New Joint Employer Test

By: Mark Wiletsky

Employers often struggle to determine whether they might be considered “joint employers” with other entities under the Fair Labor Standards Act (FLSA). The U.S. Department of Labor (DOL) is proposing new guidance on this topic, providing much-needed clarity for employers across the country.

DOL’s Proposed Rule Would Clarify Joint Employer Test Under the FLSA

In today’s economy, businesses often work together to provide services or products to consumers and other entities. For example, companies sometimes rely on staffing agencies to augment their workforces, and organizations contract with vendors to provide services such as landscaping, building maintenance, and cleaning. These and other business arrangements create the significant—and often difficult to assess—risk that the associated entities may be deemed “joint employers” under the FLSA, even if they are independently owned and operated. If associated entities are considered joint employers, each may be liable for paying minimum wage and overtime to employees, which can pose huge liability concerns where one entity fails to comply with applicable wage and hour law.

Unfortunately, determining whether two or more entities are in fact joint employers is no easy task. Different courts have formulated different tests for joint employer status, and the tests are often complicated and indeterminate.

June 14, 2019

Employers Pay Attention: New Marijuana-Related Bill Passes Nevada Legislature

A number of employment-related bills passed this 2019 legislative session. One of these bills is AB 132, revising certain sections of NRS Chapter 613 as it relates to unlawful employment practices.

To put things in perspective, when the recreational marijuana initiative passed in 2016 (effective 2017), it specifically stated that it did not prohibit “[a] public or private employer from maintaining, enacting, and enforcing a workplace policy prohibiting or restricting actions or conduct otherwise permitted under this chapter.” See NRS 453D.100(2)(a). AB 132 provides that, subject to the exceptions listed below, it is unlawful for any employer in Nevada to “fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.” AB 132 creates exceptions to this mandate if the prospective employee is applying for a position:

As a firefighter, as defined in NRS 450B.071;
As an emergency medical technician, as defined in NRS 450B.065;
That requires the employee to operate a motor vehicle and for which federal or state law mandates that the employee submit to screening tests; or
That, in the employer’s determination, could adversely affect the safety of others.

June 13, 2019

What’s Up In New Mexico Workplace Law

By Little v. West

Gov. Michelle Lujan Grisham signed bills into law from the 2019 legislative session that will impact private employers in New Mexico. Below is a summary of several bills that change the law applicable to private employers. Employers should consult with legal counsel and consider reviewing and updating employment policies, procedures and handbooks.

‘Right to work’

House Bill 85 rejects “right to work” as a matter of statewide policy and instead establishes that an employer or union in New Mexico can require membership in a union as a condition of employment. HB 85 also prohibits local governments in New Mexico from enacting “right to work” ordinances, invalidating the “right to work” ordinances several counties enacted.

June 5, 2019

Federal Courts Have Jurisdiction Over Title VII Discrimination Claims Even Where Administrative Remedies Have Not Been Exhausted

by Steve Gutierrez

The United States Supreme Court ruled unanimously on June 3, 2019 that Title VII’s charge-filing requirement is not jurisdictional. In Fort Bend County, Texas v. Davis, Justice Ginsberg delivered the Court’s unanimous decision noting that while Title VII requires a complainant to first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), the charge-filing precondition is not a jurisdictional requirement that can be raised at any stage of a proceeding. Rather, the charge-filing prerequisite is ranked among the claim processing rules that must be timely raised for it to apply.

The complainant in the Fort Bend, Lois M. Davis,case timely filed her initial charge of discrimination for retaliation after she claimed her supervisor retaliated against her by curtailing work responsibilities. Complainant alleged the supervisor wanted to punish her for a complaint she made against her supervisor’s friend who resigned following an investigation into a sexual harassment complaint. While her charge of discrimination was pending, Ms. Davis was instructed by her supervisor to report to work on a Sunday. Ms. Davis told her supervisor that she could not come in on Sunday, that she had a commitment at her church, and offered to have another employee replace her. Ms. Davis’ supervisor was insistent and told her that if she did not report to work on Sunday she would be terminated. Ms. Davis went to church instead of work and was promptly terminated. Thereafter, Ms. Davis attempted to supplement the allegations of her original Charge of Discrimination by adding to the intake questionnaire the word “religion.”