January 16, 2024

Does Your Business Properly Classify Independent Contractors? DOL Publishes Final Rule on Worker Classification

Kody Condos

On January 9, 2024, the U.S. Department of Labor (“DOL”) published its final rule defining the term “independent contractor” and setting forth the new test for determining independent contractor / employee status (the “Rule”). The DOL estimates that “there are 6.5 million small establishments or governments” relying on independent contractors that “could be affected by “ the new Rule.[1]

Greg Saylin

The Rule, effective March 11, 2024, differentiates an independent contractor from an employee if the worker is “as a matter of economic reality, in business for themselves,” meaning, the worker cannot be economically dependent on the potential employer for work.[2] The “economic reality” does not focus on the amount of income earned by the worker, or whether the worker has other sources of income. Rather, the Rule applies the following six factors to determine economic independence:

“The worker’s opportunity for profit or loss;”
“Investments by the worker and the potential employer;”
“The degree of permanence of the relationship;”
“The nature and degree of the potential employer’s control over the work;”
“The extent to which the work is “integral” to the potential employer’s business;” and
“The worker’s skill or initiative.”

The DOL and courts are to utilize a “totality of the circumstances” approach in applying the test. And, while the DOL articulates only six factors, the Rule provides that other (unnamed) factors may also be relevant in any given case.[3]

The Factors, Explained

While some of the factors are reminiscent of prior guidance and other tests, the Rule deviates from precedent and provides important clarification on the factors to be applied.[4] It also deviates from its predecessor in some very important ways. Read more >>

December 1, 2023

A Reminder for Employers: Review Your Separation Agreements

Mark Wiletsky

by Mark Wiletsky

The goal is to avoid an existing or potential dispute, claim, or lawsuit. But if companies don’t routinely review and update those agreements, they risk the agreement being challenged or invalidated. Even worse, companies are sometimes investigated and forced to pay fines or penalties for provisions in the agreements. A recent settlement announced by the Securities and Exchange Commission (SEC) provides a strong reminder to employers to regularly review and update agreements used with employees.

Facts

On September 19, 2023, the SEC announced a settlement with a real estate services firm. According to the announcement, the company violated the SEC’s whistleblower protection rule with separation agreements it used between 2011 and 2022. The agreements contained a common provision: Employees had to affirm they hadn’t filed a complaint about the company with any state or federal court or local, state, or federal agency. These types of representations are typically included in separation or settlement agreements to ensure that any pending complaint or charge is resolved in conjunction with the separation or settlement agreement. Read more >>

November 28, 2023

Accommodating a Request for Worship Space in the Workplace

Mark Wiletsky

by Mark Wiletsky

Question: Do employers need to provide a space for employees to worship and/or pray in the office?

The short answer is: Maybe. You must reasonably accommodate employees’ sincerely held religious, ethical, or moral beliefs or practices unless doing so would impose an undue hardship.

For decades, courts held that employers could deny such requests under Title VII of the Civil Rights Act of 1964 if the accommodation would impose more than a “de minimis” cost or burden. In June 2023, however, the U.S. Supreme Court “clarified” that standard. In Groff v. DeJoy, the Court held that employers can deny requests for religious accommodation only if the accommodation would result in “substantial increased costs in relation to the conduct of [an employer’s] particular business.” The Equal Employment Opportunity Commission (EEOC) has provided similar guidance, stating that employers shouldn’t try to suppress all religious expression in the workplace. Read more >>

November 2, 2023

Water Sources and Compliance with the PUMP Act

Dana Dobbins

By Dana Dobbins

Question: To be compliant with the PUMP Act, it states there must be a water source. Must this water source be in the same room as the designated space, or is nearby acceptable? It is difficult to identify a space that can be locked, quiet, and private that is not a bathroom but also has a sink.

Answer: The federal Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) was signed into law on December 29, 2022. The PUMP Act requires em-ployers to provide covered employees with “a place, other than a bathroom, that is shield-ed from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 29 U.S.C. 218d(a)(2). This law does not require that a water source be within the designated lactation space. Read more >>

October 31, 2023

Breastfeeding Accommodations in the Workplace

Dana Dobbins

By Dana Dobbins

The ability to pump breast milk in the workplace is protected by the FLSA. In 2010, the Break Time for Nursing Mother Act was passed as part of the Affordable Care Act (ACA) and amended the FLSA to include break time and space requirements for nursing to pump breast milk at work. The PUMP Act was signed into law on December 29, 2022, further amending the FLSA to extend the reasonable break time requirement and expand lactation space requirements. The PUMP Act also extended available remedies for violations. Employers should be cognizant of the PUMP Act requirements, as well as any further protections imposed by state and local law.

Break Time Requirements

The PUMP Act requires employers to allow covered employees, for one year after the child’s birth, to take reasonable break time each time such employee has need to express the milk. The PUMP Act is silent as to what is considered a reasonable break time or how many breaks are permitted, reinforcing the drafters’ intent that these issues are to be determined on a case-by-case basis depending on the individual needs of the employee. The Department of Labor (DOL) has explained that the frequency and duration of breaks will depend on a variety of factors, including the location of the lactation space, and the steps reasonably necessary to express breast milk, such as pump setup. An employer cannot deny a break for a covered employee who needs to pump. Read more >>

October 2, 2023

SEC Settlement A Reminder for Employers: Review Your Separation Agreements

by Mark Wiletsky

Mark Wiletsky

Companies routinely use separation agreements with departing employees. Through those agreements, the employee receives some type of separation benefit (typically a payment or severance), and in exchange the employee waives and releases any potential claims against the company. The goal is to avoid an existing or potential dispute, claim, or lawsuit. But if companies do not routinely review and update those agreements, they risk the agreement being challenged or invalidated. Even worse, companies are sometimes investigated and forced to pay fines or penalties for provisions in these agreements. A recent settlement announced by the Securities and Exchange Commission (SEC) provides a strong reminder to employees to regularly review and update agreements used with employees.

The Facts

On September 19, 2023, the SEC announced a settlement with a real estate services firm. According to the announcement, the company violated the SEC’s whistleblower protection rule with separation agreements it used between 2011 and 2022. The agreements contained a common provision: employees had to affirm that they had not filed a complaint about the company with any state or federal court or local, state, or federal agency. These types of representations are typically included in separation or settlement agreements to ensure that any pending complaint or charge is resolved in conjunction with the separation or settlement agreement. Read more >>

September 28, 2023

Worship in the Workplace and Reasonable Accommodations

Mark Wiletsky

by Mark Wiletsky

Question: Do employers need to provide a space for employees to worship and/or pray in the office?

Answer: The short answer is: Maybe. Employers must reasonably accommodate employees’ sincerely held religious, ethical, or moral beliefs or practices unless doing so would impose an undue hardship. For decades, courts held that employers could deny such requests under Title VII of the Civil Rights Act of 1964 if the accommodation would impose more than a “de minimis” cost or burden. In June 2023, however, the U.S. Supreme Court “clarified” that standard. In Groff v. DeJoy, the Supreme Court held that employers can deny requests for religious accommodation only if the accommodation would result in “substantial increased costs in relation to the conduct of [an employer’s] particular business.” The Equal Employment Opportunity Commission (EEOC) has provided similar guidance, stating that employers should not try to suppress all religious expression in the workplace. Read more >>

September 12, 2023

How to Address Damage to Company or Customer Property

Laurie Rogers

by Laurie Rogers

Question: Can we legally require employees to reimburse the company for damage to customer or company property (i.e., the full amount of damages or insurance deductible)?

Answer: Many employers have policies requiring employees to reimburse them for damage to company property, usually through payroll or final paycheck deductions. Before implementing such a policy, you must consider state and federal laws that may restrict or prohibit your ability to make such payroll deductions. Read more >>

September 8, 2023

EEOC Proposed Regulations to Implement Pregnant Workers Fairness Act

Laurie Rogers

by Laurie Rogers

Pregnant workers have certain protections under the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA), but gaps remain. The Pregnant Workers Fairness Act (PWFA) aims to close the gaps and better protect pregnant employees. To implement the Act, the Equal Employment Opportunity Commission (EEOC) recently proposed regulations that significantly increase employers’ obligations to reasonably accommodate their pregnant employees.

Expanded protections

On August 11, 2023, the EEOC proposed rules to implement the PWFA, a law that took effect on June 27, 2023. Before the PWFA, the PDA (which amended Title VII of the Civil Rights Act of 1964) and the ADA provided pregnant and postpartum applicants and employees with certain limited protections.

Under the PDA, pregnant workers can show a violation only if they can identify similarly situated employees who received an accommodation or if there is direct evidence of disparate treatment. Under the ADA, pregnant employees have a right to an accommodation only if they can demonstrate they have a pregnancy-related disability, which doesn’t include the pregnancy itself. Read more >>

June 26, 2023

Religious Accommodation: SCOTUS Approaching Decision on Title VII ‘Undue Hardship’ Standard

Steven Gutierrez

by Steven Gutierrez

On April 18, 2023, the U.S. Supreme Court heard oral arguments in a case involving a former U.S. Postal Service (USPS) worker who was denied a religious accommodation to observe his sabbath. The broad implications of a decision that favors the former worker could change the analysis for employers when assessing employee requests for religious accommodations.

Background

Gerald E. Groff is an evangelical Christian who began working at the USPS in 2012. In 2013, the USPS contracted with Amazon to deliver packages on Sundays. Read more >>