On November 8, 2018, the U.S. Department of Labor (DOL) reissued a previously-withdrawn opinion letter from 2009 (available here) that clarified its position on when employers can use the tip credit under the Fair Labor Standards Act (FLSA). Under the FLSA, an employer may pay tipped employees an hourly rate of $2.13 and take a “tip credit” for the difference between the wage paid and the federal minimum wage, which is presently $7.25. In order to qualify as a tipped employee for this rule, an employee must customarily and regularly receive at least $30 per month in tips as part of their job. The reissuance of this opinion letter helps employers by providing clarity as to what duties qualify for the tip credit. It also recognizes that the prior method endorsed by the DOL was not beneficial to either employers or employees because full compliance required a precise accounting of every minute of a tipped employee’s time. The reissued opinion letter removes that burden.
The Age Discrimination in Employment Act of 1967 (“ADEA”) forbids employment discrimination against employees who are 40 years of age or older. Private employers with less than 20 employees are not subject to the ADEA. On November 6, 2018, the U.S. Supreme Court unanimously held that the ADEA’s 20-employee threshold does not apply to government employers, and that state and local government entities are subject to the ADEA even if they have fewer than 20 employees. See Mount Lemmon Fire District v. John Guido.
On October 29, 2018, a San Francisco federal jury unanimously found that a Silicon Valley tech company did not commit unlawful retaliation by firing a transgender employee who accused the company of discrimination in a two-star Glassdoor review.
Adrian Scott Duane, a transgender man, alleged on the job review website that IXL Learning, Inc. (IXL), an educational technology provider, gave unequal treatment to employees on the basis of race, sexual orientation, and gender identity. In an anonymous post titled “Micromanaged and Problematic,” Duane claimed that:
Despite the sensitive nature of employment-related claims like discrimination and retaliation and harassment and hostile work environment, it is rare for judges to admit to personal biases that could influence their decision-making.
But a federal district court judge has recently just done exactly that. On August 30, 2018, the Hon. Lewis T. Babcock, a Senior United States District Judge for the District of Colorado, recused himself from a disability discrimination lawsuit because his son is quadriplegic and was a plaintiff in another disability discrimination suit. Judge Babcock shared this family tie, and suggested that it might create the appearance of impartiality, while overseeing oral argument on an unrelated motion.
Earlier this year, HR Legalist posted a blog entry about the New Jersey Earned Sick Leave Law. This new law (full text available here) takes effect on October 29, 2018 and requires most private sector employers in New Jersey to provide paid sick leave to its New Jersey employees. But don’t let this scare you. We’ve got some ghouls—I mean, tools—to help keep employers from getting tangled in this latest web of sick leave laws. The New Jersey Department of Labor (NJDOL) recently issued proposed regulations to implement the new law. The following is a summary of the key regulations:
On September 25, 2018, the Ninth Circuit Court of Appeals ended an aggressive five-year legal battle between Uber and its drivers regarding whether or not drivers should be considered employees versus independent contractors. In O’Connor v. Uber, the court avoided the central issue of the proper classification of drivers by ruling that drivers suing for expenses and tips must submit their claims to arbitration in accordance with Uber’s driver agreement. The Ninth Circuit’s opinion, which relied upon the U.S. Supreme Court’s ground breaking decision in Epic Systems v. Lewis, dealt a significant blow to drivers who can no longer pursue employment claims against Uber via a class-action claim in federal court, and instead must bring their claims individually to arbitration.
A spate of new state and local regulations is making it tougher to be an employer in the City That Never Sleeps. As previously covered by HR Legalist, new requirements for sexual harassment policies went into effect across New York State on October 9, 2018, and burdensome new requirements for harassment-related training will go into effect statewide on October 9, 2019. In addition, New York City employers must comply with the Stop Sexual Harassment Act, which includes its own training requirements, beginning in April 2019.
If that wasn’t enough to keep employers in The Big Apple busy, a new amendment to the NYC Human Rights Law (NYCHRL), effective October 15, 2018, adds new requirements for how employers must respond when employees request workplace accommodations. The new rule requires employers to engage in a “cooperative dialogue” with employees who request accommodations, similar to the “interactive process” required under federal law (including the Americans with Disabilities Act). However, NYC’s requirements significantly expand on the ADA’s requirements.
As previously covered by HR Legalist, employers across New York State have until October 9, 2018, to implement sexual harassment policies that meet specific minimum requirements defined in the law. On Monday afternoon, the State of New York issued final guidance which granted employers a significant reprieve on the portion of the law governing mandatory sexual harassment prevention and training. Thanks to this new guidance, employers in New York State now have until October 9, 2019 to provide the requisite training (a significant extension from the previous training-related deadline of January 1, 2019). However, the deadline for the adoption of compliant sexual harassment policies remains October 9, 2018.
In April 2018, Governor Cuomo signed the 2019 New York State budget, which includes sweeping new requirements for sexual harassment policies and training for private employers of all sizes. The October 9th deadline for all New York State employers to create, publish and implement sexual harassment policies is fast approaching. Even more burdensome for employers in New York State, is the January 1, 2019 deadline for all employees to have completed sexual harassment training (NOTE: this deadline has been extended to October of 2019, as noted in our blog update here). The next phase of implementation for the New York City area begins on April 15, 2019. The New York City training mandate includes far more extensive training requirements that will force employers to invest in sexual harassment training beyond cursory videos or training materials. Continue Reading
On July 3, 2018 the United States Court of Appeals for the Third Circuit ruled on the case of Minarsky v. Susquehanna County et al, 17-2646 (Jul. 3, 2018). The case clarifies and limits the scope of the Faragher-Ellerth affirmative defense in workplace harassment cases.
Established by the Supreme Court in 1988, the Faragher-Ellerth defense provides the employer a defense to workplace harassment claims when it can show that (1) it exercised reasonable care to prevent harassment and to promptly correct it when it might occur; and (2) that the employee failed to reasonably take advantage of preventative or corrective measures provided by the employer, or to otherwise avoid harm. Usually, this means that if the employer implements a policy prohibiting harassment, and the employee fails to report harassment that violates that policy, then the employee cannot successfully bring a harassment claim. Because this is an affirmative defense, the employer must prove both of the above elements to avoid liability. Continue Reading