HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

Happy Birthday HRLegalist!

Posted in Uncategorized

Today, HRLegalist celebrates its first birthday. We would like to extend a big thank you to all of our readers and invite you to let us know of any labor and employment issues that you would like to see addressed on HRLegalist in the upcoming year. We hope you have enjoyed our posts and look forward to continuing to provide valuable insight into the latest developments in labor and employment law!

How to Structure an Employee Severance Package Regarding COBRA and the ACA

Posted in Terminations, Workplace Policies

Often, when parting ways with an employee, an employer may offer to pay for some months of COBRA continuation coverage so that the employee can remain covered without having to pay the substantial premiums associated with COBRA. Historically, this always seemed like a solid gesture from the employer and a “no-brainer” from the employee’s standpoint. However, with the implementation of the Affordable Care Act (“ACA”), employees who part ways from their jobs now have another option—purchasing insurance via the ACA “marketplace,” which may be less expensive. Because of the intertwining of potential timing issues between electing and obtaining COBRA continuation coverage and the opportunity to purchase insurance in the ACA “marketplace,” employers must give additional thought to the typical employee separation and offer of a severance package. Continue Reading

Philadelphia Now Requires Workplace Accommodations for Nursing Mothers

Posted in Pregnancy Discrimination, Workplace Policies

Philadelphia now expressly requires both private and public employers to provide workplace accommodations for nursing mothers pursuant to an amendment to the Philadelphia Fair Practices Ordinance signed by Mayor Michael A. Nutter on September 3, 2014. The amendment, which is effective immediately, requires employers to provide employees with reasonable break times and a private, sanitary space (other than a bathroom) for expressing breast milk. Unlike the “Break Time for Nursing Mothers” provision of the Affordable Care Act (ACA) (which only applies to nonexempt employees as defined by the Fair Labor Standards Act), the Philadelphia ordinance does not distinguish between exempt and nonexempt employees. By eliminating this distinction, the ordinance makes it an unlawful employment practice for a Philadelphia employer to fail to reasonably accommodate any nursing mother (exempt and nonexempt alike). Continue Reading

New Burdensome Federal Contracting Requirements

Posted in Government, Workplace Policies

On July 31, 2014, President Obama signed the Fair Pay and Safe Workplaces Executive Order, which—for the first time—requires large federal contractors to disclose prior labor law violations, designate a Labor Compliance Advisor, and disclose wage and hour information to its workers. The provisions of the Executive Order take aim at federal contracts with a value of $500,000 or more. Continue Reading

What to Expect When Your Employees Are Expecting

Posted in Pregnancy Discrimination, Workplace Policies

Does an employer have to provide a modified work schedule to a pregnant employee with morning sickness or light duty to a pregnant employee with lifting restrictions?The answer depends on who you ask. Most federal courts say no, but the Equal Employment Opportunity Commission (EEOC) says yes. Fortunately for employers, resolution of this issue is on the horizon. On July 1, 2014, the United States Supreme Court agreed to decide the issue during its October 2014 term in Young v. United Parcel Service, Inc. The Supreme Court will decide whether employers that accommodate nonpregnant employees’ work limitations are required to do the same for pregnant employees with similar pregnancy-related limitations under the federal Pregnancy Discrimination Act (PDA). Although the Supreme Court will provide clarification on the issue under federal law, employers should be mindful that several states and cities, including New Jersey, New York City and Philadelphia, have laws which require employers to provide reasonable workplace accommodations to pregnant employees unless such accommodations would pose an undue hardship on the employer’s business. For now, one thing is certain—employers should pay particular attention to this issue because there is a growing trend in laws expanding the rights of pregnant women in the workplace. Continue Reading

State Law Wage & Hour Resource: You’ll Need It!

Posted in Wage & Hour

You thought that figuring out, and staying on top of, the federal Fair Labor Standards Act was tough. Well, don’t forget that you must comply with state wage and hour laws as well. Sure, the FLSA is quite nuanced and complex; but each state may have subtle differences when compared to the FLSA. As an employer, your responsibility is to ensure compliance with the FLSA and the state law of each state where you do business. So, for example, if you think your Information Services Department employee in Pennsylvania is “exempt” from the overtime provisions of the FLSA as a computer employee, think again: Pennsylvania law does not recognize the exemption for computer employees! (Hmm . . . better think of another potential exemption to apply to that employee.) Pennsylvania is not the exception — many states have “interesting” differences from the FLSA. Continue Reading

New Jersey Adopts “Ban the Box” Law

Posted in Hiring, Workplace Policies

On August 11, 2014, New Jersey joined a growing number of “ban the box” states when Governor Chris Christie signed into law the Opportunity to Compete Act. The Act, which goes into effect on March 1, 2015, precludes public and private employers with 15 or more employees from asking about a job applicant’s criminal record until after the first job interview, unless the applicant voluntarily discloses such information. The Act also prohibits employers from mentioning criminal history in any job advertisement. Employers cannot ask about criminal history in any employment application form or process before or during the applicant’s initial interview. Employers should ensure that their employment applications are compliant when the Act becomes effective. Continue Reading

How To Handle Insufficient Medical Documentation in Support of an Employee’s Disability Accommodation Request

Posted in Americans with Disabilities Act, Workplace Policies

Workplace accommodation issues under the Americans with Disabilities Act (ADA) can be tricky to navigate especially if the employee’s supporting medical documentation is insufficient. This often occurs in situations where the medical documentation only lists the medical condition but does not specify how it relates to a requested workplace accommodation or the health care professional does not have the expertise to issue an opinion on the medical condition. An employer may require that the employee provide sufficient supporting medical documentation prior to granting the accommodation request when the disability and need for accommodation are not obvious. However, a recent decision in Gilreath v. Cumberland County Board of Education, Civ. A. No. 11-0627, 2014 U.S. Dist. LEXIS 105904 (E.D.N.C. July 31, 2014), serves as an important reminder to employers that it is incumbent upon the employer to explain why the medical documentation is insufficient and allow the employee an opportunity to provide the missing information in a timely manner. The following guidance provides clarification on the rules surrounding medical documentation in support of disability accommodation requests. Continue Reading

Franchisors Not Lovin’ It: NLRB Announces McDonald’s Named Joint Employer with Franchisees

Posted in Labor Relations

On July 29, 2014, the National Labor Relations Board (NLRB) Office of the General Counsel announced that McDonald’s, USA, LLC will be named as a “joint employer” in at least 43 cases alleging unfair labor practices against its franchisees—a decision that could hold McDonald’s responsible for employment actions taken at thousands of its franchises and could impact all businesses operating under a franchise model. In addition, the ruling could open the door to unionizing the fast-food industry nationwide. Continue Reading

NLRB Rules Bergdorf Shoe Sellers Are Mismatched for Micro-Bargaining Unit

Posted in Labor Relations

In a long-awaited decision, the National Labor Relations Board (NLRB) unanimously held that women’s shoe sales associates from two different departments within Bergdorf Goodman’s New York store could not be combined into a single micro-bargaining unit. Specifically, in Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, 361 N.L.R.B. No. 11 (July 28, 2014), the NLRB dismissed a union’s petition for a representation election among 35 employees in the Salon shoe department and 11 employees in the Contemporary shoe department because the employees lacked a “community of interest.” The NLRB’s decision hinged on the fact that the boundaries of the petitioned-for unit did not resemble any administrative or operational lines drawn by the employer—the employees were in different departments, had different job classifications and did not report to the same supervisors. The decision highlights some important lessons for retail employers in preventing the certification of interdepartmental micro-bargaining units. Continue Reading