But not every article of clothing constitutes a “uniform” under the FLSA. The U.S. Department of Labor (USDOL) has long maintained that certain clothing, although required by the employer, is of such a character that it may be reasonably worn outside the context of work and therefore is not a uniform. Shoes are an interesting case-study.
Does The Shoe Fit?
Many hospitality employers often require employees, such as culinary department workers, to wear a certain type of shoe during work hours. Perhaps the most popular variety is the dark-colored, non-slip shoe—widely used both for their appearance and for safety reasons.
Some employers may be surprised to learn that the USDOL takes the position that these shoes do not constitute a uniform under the FLSA. As a result, employers can impose the cost of such shoes even if the cost results in the employee receiving less than the minimum wage after such deduction.
Before The Other Shoe Drops…
A word of caution before hospitality employers rush out to take advantage of this cost transfer. Experience in USDOL investigations teaches us that the agency does not give employers complete freedom regarding shoe deductions, even when it comes to dark-colored, non-slip shoes. For example, if you require employees to order a specific brand of shoe from a certain vendor when a comparable, less-expensive alternative is available, the USDOL may conclude that the shoe is no longer “basic street clothing.” The agency may reach the same conclusion if the employee already owns a pair of shoes but is told that they must order a new pair. Finally, the USDOL will be on the lookout for any ordering mechanism whereby the employer receives a fee or profit anytime an employee orders shoes through a designated vendor.
Many hospitality employers are familiar with Shoes for Crews, a manufacturer of non-slip shoes and other accessories. Shoes for Crews offers a corporate program to businesses which includes a “warranty” in the form of a $5,000 payment if an employee wearing Shoes for Crews slips at work. The USDOL finds this warranty problematic. The agency has been known to take the position in investigations that this warranty constitutes a benefit to the employer that changes the legal characteristic of the shoe such that it becomes a uniform. Thus, according to USDOL, an employer participating in this Shoes for Crews corporate program may not impose the cost of the shoe on an employee if doing so cuts into the minimum wage or overtime wages. The agency has taken this position even when an employer has never asserted a claim for the Shoes for Crews warranty payment.
Conclusion: Putting Yourself In Your Employees’ Shoes
The cost of purchasing (or cleaning) a uniform can be problematic for employers, when the cost (or part of the cost) is borne by the employee. Setting aside whether there is a legal basis for the USDOL’s position on the shoe warranty program, hospitality employers should carefully review their policies as they relate to the cost of required clothing worn by employees.
For non-slip shoes, if you have decided to pass on the cost of these shoes to employees, consider giving the employee the option of purchasing shoes at a retailer of their choice or wearing already-owned shoes which are compliant with safety requirements. This is particularly true for employers that participate in the Shoes for Crews corporate program.
For more information, contact the authors:
Andria Ryan – Partner, Atlanta office
ALureryan@fisherphillips.com
(404.240.4219)
Ted Boehm – Partner, Atlanta office
TBoehm@fisherphillips.com
(404.240.4286)
Equally as troubling as the actual allegations of misconduct is the fact that these reports have pulled back the curtain to reveal organizational cultures that have often permitted the systemic and pervasive harassment to continue for years on end. Employers that have stuck their head in the sand about a toxic workplace environment could be forced to answer for their years of neglect both in the courtroom and in the court of public opinion.
The time is now to examine your organizational culture to ensure that you are not only providing a workplace free of harassment, but also a workplace culture that does not embolden your employees from carrying out unprofessional and hurtful behavior. The good news is that this is a fairly straightforward process, and we have boiled it down to a five-step plan that you can implement immediately. The bad news is that members of your organization might find it uncomfortable to address this situation and confront this sort of behavior. It is imperative, however, that human resources representatives, legal counsel, business owners, and managerial personnel take the lead and force your organization to adjust to this new reality without further delay.
Step One: Make Sure Your Policies Match Modern Standards
All too often, employers amend their handbooks to address developing legal and administrative changes (paid leave policies, for example, or shifting organizational structure), but will leave in place some of the tried-and-true policies that have served the company for years without thought of revision. If you haven’t updated your sexual harassment policy in the past several years, you might be behind the curve. Recent court decisions have placed greater responsibility on employers to establish policies that address sexual harassment in a more realistic and thoughtful manner.
At a minimum, your policy should clearly indicate that you have “zero tolerance” for sexual harassment in any form. You should clearly define the term and provide examples of conduct that would run afoul of your standards (including, for example, boorish behavior, off-color jokes, unsolicited hugs or shoulder rubs, sharing pornographic images, etc.) so that there is no confusion.
Your reporting policy should encourage employees to report their concerns about potential harassment immediately. You should also provide several avenues for the employee to provide their report, whether through their immediate manager, a human resources representative, another manager, or even a hotline number or intranet reporting mechanism.
Finally, your policy should clearly guarantee your workforce that they will not face retaliation as a result of their report. Providing this level of safety and security is important if you truly want to foster an open and respectful atmosphere.
Step Two: Disseminate Your Policies In A Thoughtful Way
Your policy is worthless if it sits on a shelf and is never accessed by your employees. You need to ensure that your workforce is aware of your position on sexual harassment if you want the policy to be effective. Most employers distribute the policy as part of the onboarding process and require new employees to sign an acknowledgment of receipt. And that’s a good start – but it’s just a start. You should take additional steps if you want the policy to truly become part of your workplace culture.
At the time of hire, a human resources representatives should take the time to specifically describe your harassment policy and start a conversation about your organization’s zero-tolerance philosophy. That lets the new employee know right out of the gate that you take this issue seriously. If your organization has an intranet, you should consider hosting the policy there permanently so that it can be readily accessed by anyone at any time. You should periodically provide copies of the policy as a standalone document to all of your employees to remind them of their rights and responsibilities. A good way to accomplish this is by having one of your highest level officials – if not the highest level executive – distribute the policy from their email account or via signed memorandum. By setting the tone from the top, your organization will send a signal to everyone that you take the subject matter seriously.
Step Three: Train Your Managers To Address Issues And Avoid Common Mistakes
Training your managers on your sexual harassment policy is a critical step. Your organization could be held automatically liable for any proven sexual harassment if carried about by a managerial employee, so all of your hard work in developing and disseminating your policy could be deemed irrelevant if your managers act inappropriately. You need to drill your policies into their minds on at least an annual basis through formal training sessions.
There are a few common mistakes to warn your managers about at these sessions. First, many companies get in trouble when managers ignore inappropriate behavior that they believe is “welcomed” by the victim, or if it appears to be part of a mutual and voluntary interaction. Your managers need to know that victims of harassment will often pretend to “go along” with the behavior for fear of losing their job, or simply because they want to appear to be part of the team, but that they will more than welcome managerial intervention that puts a stop to the conduct. Moreover, the conduct that your managers see out in the open, or hear about through the grapevine, is often just the tip of the iceberg, and it could signal that much worse behavior is taking place outside of your knowledge. For these reasons, your managers should be trained to address any behavior they witness or hear about, no matter if it appears that it is all in good fun and that no harm is occurring.
Second, it is common for some managers to allow extra leeway for certain employees because it is commonly accepted that their behavior is simply a harmless personal idiosyncrasy. Reports about misconduct or inappropriate behavior are met with a chuckle and a statement such as, “Oh, that’s just Harvey being Harvey!” It becomes commonly known around the workspace that you need to operate differently around that employee because they’ve been acting like that forever. “He likes to give hugs but he’s harmless,” or “Just don’t caught in his office one-on-one and you’ll be fine” are common sentiments in these workplaces. This is exactly the kind of attitude that leads to festering situations and that should be eradicated from your workplace. All employees should be held to the same standard, no matter how long their actions have been tolerated in the past.
Step Four: Promptly Investigate Any Issues Raised
Once you receive a report of sexual harassment, it’s time to take immediate action. If you delay your investigation until work slows down or until an important project is completed, you will send a signal to your workforce that this isn’t a priority. Moreover, you could face hostile questioning under oath in a subsequent lawsuit about what you were doing that was so important that it trumped the well-being of your workers. Therefore, you should clear the decks and do everything reasonably possible to make the investigation your highest priority.
Your human resources department should take the lead in the investigation, as they are trained to carry out an effective and legally compliant inquiry. There is no cookie-cutter approach to investigations because they are all unique depending on the circumstances, but there are some common threads that accompany a reasonable examination:
Step Five: Consistently Enforce Your Standards
Finally, and perhaps most importantly, you need to take action against the accused employee if the allegations against them are substantiated through your investigation. If your workforce figures out that your policy is toothless, they will lose respect for your organization and will feel dissuaded from reporting other misconduct. This could lead to legal trouble, but also to flagging morale and high turnover among your key contributors.
Your goal in meting out a response is to take action sufficient to ensure that the behavior is not reasonably likely to occur again. In some situations involving mild misconduct, it might be sufficient to give a documented verbal warning to the employee along with an acknowledged reminder of your sexual harassment policy. In more severe or reoccurring situations, the only reasonable possible response is termination. In between the two are a whole host of possible options, including written warnings, mandatory professionalism classes, behavioral improvement plans, suspensions, demotions, and the like.
Some employers run into trouble when they inconsistently apply standards to high-performing or high-ranking individuals accused of harassment. When push comes to shove, these organizations value the contributions these employees make to the company’s bottom line more than they value the ideals contained in the sexual harassment policy. There is no better way to hurt morale at your organization and neuter your harassment policies than to give a pass to a key executive accused of misconduct while coming down hard on a mid-level manager or hourly worker accused of similar behavior. On the other hand, your policy’s effectiveness will be given a boost if your workforce sees it applied in an evenhanded manner, no matter who is accused of a violation.
What Next?
You will soon receive additional guidance about how to prevent sexual harassment in the workplace from the Equal Employment Opportunity Commission (EEOC). In an instance of opportune timing, the Commission recently announced that it will soon release updated guidelines on the subject for the first time in over 20 years. Acting EEOC chair Victoria Lipnic acknowledged that “the update comes up at a time of burgeoning publicity for sexual harassment and assault in the workplace,” though she said the timing of the update was “purely coincidental.”
After several years of drafting and editing, which included incorporating public opinion on key issues, the Commission unanimously approved the new guidelines in early November. The draft guidelines are in the process of being reviewed by the Office of Management and Budget, and, once approved, will be released to the public. Fisher Phillips stands ready to analyze the new guidelines and provide additional recommendations once published, which is expected in the near future.
Conclusion
These are challenging times for employers. You are being asked to reexamine your organizational culture to ensure you are providing a safe and professional working environment for everyone in your service, and it’s not always easy to take an honest look at what has been created. However, going through this exercise will make your organization even stronger. Once you have addressed this situation and put into place an effective mechanism for addressing possible harassment claims, your workforce will be free to accomplish their mission without troubling distractions interfering with their jobs.
Authors
Jennifer Sandberg – Partner, Fisher & Phillips
Joseph Shelton – Partner, Fisher & Phillips
As sexual misbehavior, assault, and harassment in the workplace are front-of-mind, here are some steps employers should consider taking today:
The heightened focus on sexual harassment may unearth new allegations within the workplace. In those instances, employers who become aware of new allegations of sexual harassment should immediately:
These are just some of the most critical things to remember as employers contend with a potential increase in allegations of sexual misconduct and harassment in the workplace. Post & Schell can assist employers with all of the above measures – from helping to craft policies and training materials and training supervisory and non-supervisory personnel, to investigating or supporting internal investigators as they conduct investigations and handling any resulting litigation. If you have questions or concerns, please reach out to any member of the Firm’s Employment & Employee Relations Practice Group in our:
Philadelphia Office:
Sidney R. Steinberg (ssteinberg@postschell.com)
Andrea M. Kirshenbaum (akirshenbaum@postschell.com)
A. James Johnston (ajohnston@postschell.com)
Kate A. Kleba (kkleba@postschell.com)
Harrisburg Office:
Sarah C. Yerger (syerger@postschell.com)
Pittsburgh Office:
David E. Renner (drenner@postschell.com)
Disclaimer: This EFlash does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this EFlash without first seeking the advice of counsel.
]]>The primary purpose of the GDPR is to provide EU citizens with greater control over how their personal data is collected, protected and used. There must be a legitimate and lawful reason for collecting data and limited to the minimum necessary information for the purpose for which data are collected. Data must be deleted when that purpose has been achieved.
The definition of personal data under the GDPR is extremely broad and includes any information relating to an identified or identifiable natural person (e.g., addresses, telephone numbers, email addresses, bank information, credit card details, photos, posts on social media websites, medical information, and even an IP address). There is also a separate definition for “sensitive personal data” (e.g., racial or ethnic origins, political opinions, physical or mental health and criminal history) which is entitled to even greater protection.
Companies which are in compliance with the existing Data Protection Act (DPA) certainly have a head start as not everything has changed, but most companies will have to implement additional privacy protections and adopt comprehensive data protection strategies to comply with the more expansive provisions of the GDPR. The following are steps which companies should consider taking now to prepare for implementation of the GDPR.
With the enforcement date of the GDPR only seven months away, organizations should start assessing their policies and procedures so that they are not caught short when the law goes into effect. Organizations with any questions about the applicability of the GDPR to their activities or how to prepare should contact their regular Fisher Phillips attorney or any of the attorneys in our Data Security and Workplace Privacy Group.
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]]>Pregnancy Accommodation Under Federal Law
Title I of the ADA prohibits discrimination against employees or applicants due to their disability or perceived disability, and requires employers to accommodate disabled employees if they can still perform the essential functions of their job. The ADA applies to employers with 15 or more employees and mandates that those employers accommodate a disabled employee’s condition as long as the accommodation would not cause undue hardship on the company. Under the ADA, pregnancy itself is not a disability; however, the ADA does cover impairments related to pregnancy and birth that would qualify as disabilities under the ADA.
For example, the Equal Employment Opportunity Commission has stated that such conditions as pregnancy-related carpal tunnel syndrome, preeclampsia, gestational diabetes and pregnancy-related sciatica would all likely be disabilities covered by the ADA, even though temporary. Thus, if a pregnant employee suffers from pregnancy-related sciatica and complains to her employer of this condition, her employer is required to provide a reasonable accommodation, such as temporarily reassigning the employee to light duty or permitting the employee to take more frequent rest breaks, as long as it would not create an undue hardship.
In addition to the ADA, the Family and Medical Leave Act (“FMLA”) and the Pregnancy Discrimination Act (“PDA”) provide further requirements related to pregnant employees. In the context of pregnancy, the FMLA requires employers to permit employees up to 12 weeks of unpaid leave for the birth or care of a newborn child, and for their own serious health condition, while the PDA mandates that pregnant employees or women affected by childbirth or related conditions be treated the same as all other non-pregnant employees or applicants. Thus, under the PDA, if non-pregnant employees that complain of back pain are routinely given light duty assignments, a pregnant employee complaining of back pain should also be given a light duty assignment even if the pain is not severe enough to constitute a disability under the ADA. Additionally, employers need to remember that Title VII of the Civil Rights Act also prohibits employers from discriminating against women affected by pregnancy or childbirth as a form of sex discrimination.
It is important to keep in mind that pregnant employees and applicants, or those affected by childbirth or related conditions, do not have to be treated better than other employees, but must be treated akin to those experiencing similar conditions.
Pregnancy Accommodation Under State Law
Where states have passed laws regarding protections for pregnant workers, those laws have generally expanded the requirement to accommodate beyond the limits of the ADA. For instance, The Massachusetts Pregnant Workers Act, which goes into effect on April 1, 2018, mandates that employers provide reasonable accommodations to pregnant workers for any pregnancy or a condition related to pregnancy. Thus, the pregnancy, or a pregnancy-related condition including, but not limited to, lactation or need to express breast milk, must be accommodated if requested, even if the worker’s condition does not meet the standard for a disability under the ADA. The Massachusetts law lays out examples of what would constitute a reasonable accommodation, including more frequent or longer breaks, time off to recover from child birth, light duty, and assistance with manual labor, although the law also notes that an accommodation is not limited to these specific options.
Like the ADA, the Massachusetts law does not require an accommodation be provided where it would cause an undue hardship on the employer and lays out the specific factors that must be considered in assessing undue hardship, such as the nature and cost of the accommodation and the overall financial resources of the employer. Additionally, under this law, an employer can require documentation of the need for a reasonable accommodation from an appropriate health care or rehabilitation professional. Significantly, however, such documentation cannot be required for certain accommodations, including more frequent restroom, food or water breaks; seating; or limits on lifting over 20 pounds. Aside from the accommodation component of the Massachusetts law, it also specifically delineates what would constitute impermissible discrimination based on pregnancy or a pregnancy-related condition such as taking an adverse action against an employee who requests or uses a reasonable accommodation.
The District of Columbia, which passed its own law regarding pregnancy accommodation called the Protecting Pregnant Workers Fairness Act of 2014, similarly requires reasonable accommodation for any employee whose ability to perform her job is limited by pregnancy, childbirth, breastfeeding or a related medical condition, unless such accommodation would cause undue hardship on the company. The District of Columbia’s law also lays out typical accommodations for a covered employee much like those provided for in other states’ laws, including relocating the employee’s work area, acquisition or modification of equipment or seating, and providing private non-bathroom space for expressing breast milk. The law also permits District of Columbia employers to require certification from a medical health care provider to show the accommodation is advisable, and does not limit the types of accommodation for which such documentation can be requested. In addition, the District of Columbia law prohibits discriminatory treatment of a pregnant worker, such as requiring an employee to take leave if another accommodation can be provided or denying an employment opportunity due to the worker’s request for an accommodation.
Beyond the requirements of these state laws, it’s important to remember that they tend to apply to a larger number of employers due to the lower employee threshold that triggers their requirements. For example, Connecticut’s law, which requires reasonable accommodations for employees and applicants based on pregnancy, childbirth, or related conditions, applies to all employers with at least 3 employees. A similar California law applies to all public employers and private employers with 5 or more employees, while the District of Columbia and New Jersey laws apply to all employers.
Many of the state laws also usually require some form of notice to employees of the rights the law protects and its relevant provisions. The applicable law may provide for a specific notice to be circulated or posted, such as the District of Columbia and Maryland, or may more broadly define the notice requirement, giving employers an option of how to provide it.
In sum, although state pregnancy laws have many similarities and some important differences, they are generally consistent in expanding protections similar to the ADA to any employee affected by pregnancy or child birth, and it is likely that any enforcement body will view the accommodations outlined in these laws as reasonable for most, if not all, employers.
What Employers Should Do to Comply
Because pregnancy accommodation laws vary from state to state, it is important for employers to be aware of the specific requirements of the law in each state in which they operate. For example, one state may permit an employer to require medical documentation no matter the type of accommodation, while another state, like Massachusetts or Washington, restricts the employer’s ability to request documentation for certain types of accommodations like seating or longer/more frequent rest breaks. Even an employer operating only in a single state should be aware of the nuances of any pregnancy accommodation law, such as whether the law is even applicable based on the size of the employer.
If an employer operates in a state with a pregnancy accommodation law, it should ensure that its handbook, as well as any relevant stand-alone policies, clearly notify employees of their rights and how to exercise those rights to obtain an accommodation. Additionally, because many state pregnancy laws require an employer to subsequently notify an employee of their rights if the employee informs the employer of a pregnancy or a pregnancy-related condition, employers in those states must be prepared to provide additional notification in that circumstance.
Finally, employers should ensure that they provide training to management about how to effectively address the need for an accommodation to ensure that pregnant workers or workers with a pregnancy-related condition are provided an appropriate accommodation, and are not treated any differently for requesting or receiving that accommodation.
]]>As I’ve spoken with people (security people and “civilians”), I’ve found many who had no idea that the GDPR was a thing. I know Americans tend to have a very US-centric view of the world, but the GDPR is critical for any business with a presence, customers, or clients in or from the EU.
The EU General Data Protection Regulation (GDPR) replaces the Data Protection Directive 95/46/EC with an effective date of 25 May 2018 (so about [half] a year to get ready).
The GDPR clearly expresses the central difference between the views of American and EU. The GDPR “[p]rotects [the] fundamental rights and freedoms of natural persons and in particular their right to protection of personal data.”
In the US, personal data is typically seen as the property of the holder of the data. The EU expressly views personal data as the property of the person. This difference makes the GDPR distinct from US data breach notification laws.
There are a number of key items to review in the GDPR:
“Data Subjects have the right to have the data controller erase his/her personal data, cease further dissemination of the data, and potentially have third parties halt processing of the data.”
Non EU companies that do business in the EU or have customers that are citizens of the EU or live in the EU will have to comply with these regulations for their EU data subject. Any non-compliant organizations will face heavy fines.
So, get ready folks. You don’t have much time to explore and internalize the GDPR.
]]>Employers Should Avoid “Wait-And-See” Approach
Often the employee assailant previously exhibited warning signs of violence, including aggressive complaints about management, threats made to coworkers, or involvement in an ugly domestic, marital, or child custody dispute at home. But it is common for the employer to have failed to take any measures ahead of time to prevent the event.
The pattern of employers failing to take proactive measures prior to these incidents is nothing new. For years, many employers have ignored warning signs about disgruntled or “problem” employees. This is often borne in fear they will be held legally responsible if their attempted preventive measure fails and the employee later acts violently; another concern is that they could be held legally liable for regarding an employee as disabled.
However, the recent rise in the number of violent events involving disgruntled employees shows that employers can no longer use a “wait-and-see” approach. You must balance taking action that some may view as invasive versus ensuring the safety of those in your workplace.
While you cannot accurately predict everyone who may present a risk of workplace violence, perhaps you can anticipate and head off some incidents. Consider adopting some of the following measures to protect employees from irate coworkers and others.
1. Review And Adjust Policies On Bullying And Unprofessional Behavior
Many active shooters are current employees who have developed a grudge against a supervisor or coworker. Some, like a recent shooter, may have previously lodged oral or written complaints against management.
Analyze any such complaints you receive carefully, looking for any signs of anger or aggression. Review and adjust your policies about unprofessional behavior, bullying, threats, and workplace violence. Educate your employees to recognize unacceptable behavior, and train your supervisors to address it before it advances to actual violence. Adopt a zero-tolerance policy for violent behavior.
Have a process in place to monitor the behavior of terminated employees from the time they are told the news until they leave the worksite. Did they make threats? Do they have a history of bullying or unprofessional behavior? How will you respond if they do?
2. Pay Attention If An Employee Is Served With Legal Process
If a sheriff arrives to serve legal process on an employee, watch for red flags. If the employee becomes irate, consider trying to talk individually and calm the employee. Alert your security team if the employee makes threats. Hopefully a manager can avoid escalation, but you may have to ask security to escort the employee to an isolated area where they can meet with management.
You may want to ask the employee if they desire counseling, although this may be an inflammatory move – you will be the best judge of that. Offer administrative leave if a cooling-off period is appropriate. If the employee is especially antagonistic or you have heard reports of possible violent behavior, you may have to involve outside security or law enforcement from the outset.
If the employee storms off prior to an opportunity to meet with them, ensure that any onsite security is aware of the situation and provides them with a photo of the employee. If you receive any threats, call the police in advance. Don’t wait for the irate employee to return. If necessary, you should consider retaining a private armed security service. Unfortunately, your local law enforcement department is often limited in how it can respond to threats and bad behavior. The prudent course may be to retain security for a certain period of time until things have cooled down.
3. Request Information From Employees Who Seek Protective Orders
Given the recent rise of violent events involving employees engaged in a domestic dispute at home, you should consider encouraging employees to tell you when they are involved in a dispute where violence may be a risk. This is especially the case when the employee has requested a restraining order. This is an evolving area of human resources and business management; you must balance being viewed as employer who attempts to invade employees’ private home life versus later dealing with an active shooter situation.
If an employee has requested a protective order, ask for a photograph of the recipient of the legal process. Provide the photo to any onsite security, reception employees, and management. If the individual arrives at your workplace for any reason, have the designated company representative approach the individual in a calm manner, isolate the individual in a designated area, and request that security respond to the situation.
In any of these situations, you should obtain guidance from law enforcement and security professionals who can tailor their advice to your specific workplace. In order to have such advice available, you should establish relationships with professional security advisors now.
4. Educate And Train Your Employees
Experts tell us that there are two types of workplace violence training: preparing for what could happen, and responding once something bad has already happened. Most employers have done neither.
While there are no guaranteed signs that an employee is going to engage in violent acts, there are signs of unacceptable behavior that you can train your workforce to identify and address. Any training program should require every worker to at least view the Department of Homeland Security’s “Run, Hide, Fight” video about surviving an active shooter situation. You should also evaluate your individual workplace for exposure and devise specific solutions as you would for any potential safety hazard.
We recommend you develop specific training based on your work setting, location, security layout, as well as general situational awareness. Consider professional instruction by an active shooter expert who can provide on-site, simulation-based training.
5. Revise Your Emergency Action Plan (“EAP”)
If you have more than 10 employees, you must develop a written Emergency Action Plan (EAP) when another Occupational Safety and Health Administration (OSHA) standard triggers the requirement to have an EAP. In addition, if fire extinguishers are available in your workplace, and if anyone will be evacuating during a fire or other emergency, you must have an EAP.
At a minimum, the EAP must include the following elements: the means of reporting fires and other emergencies; evacuation procedures and emergency escape route assignments; procedures for employees who remain to operate critical plant operations before they evacuate; accounting for all employees after an emergency evacuation has been completed; rescue and medical duties for employees performing them; and names or job titles of persons who can be contacted.
Now is the time to ensure your EAP is broad enough to cover management of an active shooter situation or respond to an active shooter. Do employees know what to do if such an emergency arose? Who calls the police? Where do the employees go? Do you have an onsite security presence? How do they respond? Have you rehearsed your response to such a situation? Given the recent rise of active shooter events, we anticipate that OSHA may begin to cite employers who fail to include responses to workplace violence incidents in their EAP.
Conclusion
Workplace shootings continue to occur at an alarming rate and yet many employers have not addressed this concern in their safety training programs. No perfect plan is currently available, but you should begin taking proactive steps to avoid these situations and minimize the risk to your workplace.
If you have any questions about these developments or how they may affect your business, please contact any member of our Workplace Safety and Catastrophe Management Practice Group or your regular Fisher Phillips attorney.
This Legal Alert provides an overview of a developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.
]]>Historically, the failure of an employer to comply with its employment tax obligations was generally treated as a civil tax problem to be handled by the IRS. A typical payroll tax case involved penalties for the delinquent employer. If the taxes were not paid promptly, responsible individuals would be assessed with the trust fund recovery penalty, which applies to “[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof.” I.R.C. § 6672(a).
Most employers are aware of the trust fund recovery penalty and the exposure it can create for individual owners and managers of a business. Less well known is the parallel criminal provision of the Internal Revenue Code, which provides that “[a]ny person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax shall, in addition to other penalties provided by law, be guilty of a felony.” I.R.C. § 7202. Although the same conduct that will trigger the trust fund recovery penalty is potentially chargeable under section 7202, criminal prosecutions historically were rare.
The enforcement landscape has changed significantly in recent years. While the IRS still serves as the primary enforcement authority for employment taxes, the Tax Division of the Department of Justice has become more actively involved over the past few years. The Tax Division has identified two factors that drove the change in enforcement policy:
Consequently, the Tax Division has been more active in both criminal and civil employment tax enforcement. Employers should be aware of these trends and should evaluate their compliance with their obligations accordingly.
Increased criminal enforcement. First, there has been an increase in criminal employment tax prosecutions. Some of the cases that have been prosecuted involve egregious behavior, and prosecutions in those situations should come as no surprise. Here are two examples:
But not all of the cases that have been prosecuted involved rogue lawyers or lavish personal expenses. Employers who use tax money to pay creditors due to cash flow problems are potentially exposed to criminal prosecution. Each violation has significant potential consequences:
And some of the cases that the government has pursued have involved relatively modest stakes: In North Carolina, a business owner was prosecuted in a case that involved $75,000 in employment taxes. Historically, a case of that size would almost certainly have been handled as a civil tax matter.
More prosecutions are presumably on the way, as CI, the criminal investigation unit of the IRS, recently indicated that it opened 206 employment tax investigations in 2016.
The lesson is relatively straightforward: All employment tax cases need to be viewed as potential criminal investigations. In that context, employers need to be particularly careful in discussing employment tax issues with their accountant, as their communications may not be privileged:
Increased civil enforcement. Second, civil enforcement actions by the Department of Justice have become more prevalent; of particular note are cases seeking injunctive relief against non-compliant employers:
While less drastic than a criminal prosecution, these civil cases have real teeth: Once an injunction is in place, a violation of any of its requirements can trigger civil or criminal contempt proceedings against the employer, its managers, and its principals. In a speech in November of 2016, the former head of the Tax Division indicated that in the two previous years, fifty-five injunction actions had been filed against employers and forty-seven permanent injunctions had been granted.
Ongoing violations of an injunction can have additional consequences beyond punishment for contempt. In a recent case in Philadelphia, a federal judge modified an existing injunction and directed that a business was shut down and that its principals barred from opening a similar business for ten years. United States v. Baker Funeral Home, Ltd., No. 11-7316, 2016 U.S. Dist. LEXIS 100018, *67-*78 (E.D. Pa. July 13, 2016). On March 9th, the Tax Division issued a press release announcing that a federal judge in the Eastern District of Washington had entered a similar order closing down a dental practice.
State and local tax authorities impose similar withholding requirements on employers, and many of these are modeled on the federal provisions. Federal tax enforcement initiatives have a tendency to trigger similar reactions at the state and local level. As a consequence, the prospect that state or local authorities might pursue criminal prosecution or a civil injunction should also be considered.
For example, on March 9th, Pennsylvania Attorney General Josh Shapiro announced criminal charges against the owner of a pizza shop in York County for failure to pay sales tax and employment tax. Whether this is the start of a trend or simply a case involving a particularly obdurate taxpayer remains to be seen. The Attorney General’s press release does note that cooperation between the Bureau of Criminal Investigation and the Department of Revenue “is important and ongoing.”
For employers, there has never been a worse time to fall behind on employment taxes. That makes it a good time to evaluate whether existing employment tax practices are adequate.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
Michelle Sumner, associate and counsel at equal employment advisory council at Washington, D.C.-based law firm NT Lakis, said there are currently 17 states in the U.S. that have ban-the-box ordinances, and that they run the gamut in requirements. Similarly, Andrea M. Kirshenbaum, principal at Post & Schell, P.C., attorneys at law, said during her practice in Philadelphia there were two different layers to its ban-the-box law—state and local—and in some cases requirements crossed over into the realm of the Fair Credit Act.
“There is not a lot of activity happening in Congress with regards to ban the box; it’s happening on the state level,” Kirshenbaum said. “With new jurisdiction coming in, we expect to see more activity in the state and local level, which makes it very challenging to hire as a multistate employer.” Don Schroeder, partner at international law firm Foley & Lardner, is unsure if he has ever seen a ban-the-box ordinance succeed, and argues that there are certain felonies that are prohibitive of someone’s trustworthiness and credibility. Click here for the full article.
]]>An FLSA workweek is a fixed, regularly-recurring period of seven, consecutive, 24-hour periods that management expressly adopts for FLSA purposes. Employers must select and document at least one such workweek (or a “work period” in limited situations) for their non-exempt workers. 29 C.F.R. § 516.2(a)(5).
What About Exempt Employees?
It is important to remember that this same obligation also applies with respect to many employees who are exempt from the FLSA’s minimum-wage and/or overtime provisions.
As a noteworthy example, U.S. Department of Labor recordkeeping regulations incorporate the workweek-selection/documentation requirement even for employees who satisfy all of the criteria for the executive, administrative, professional, or outside-sales exemption or a derivative exemption under the FLSA’s Section 13(a)(1)(typically referred to as the “white collar” exemptions). 29 C.F.R. § 516.3. Choosing and documenting a workweek is as important with respect to these employees as it is for non-exempt ones, albeit for different reasons.
For instance, consider the “salary basis” of pay that is necessary to support exempt status for most such employees. The general requirement (with some exceptions) is that the full salary must be paid for every workweek in which the employee performs any work, without regard to the number of days or hours worked in that workweek. On the other hand, the employee need not be paid the salary for any workweek in which he or she performs no work. 29 C.F.R. § 541.602(a)(1). But of course these principles cannot be properly evaluated or applied without knowing what the employee’s workweek is in the first place.
As another illustration, one scenario in which such an employee may be paid less than the full salary consistently with the salary-basis requirement has to do with the first or last workweek of his or her employment. In each of those situations, an employer may pay a proportionate part of an employee’s salary for the time actually worked in that workweek. 29 C.F.R. § 541.602(b)(6). Again, this exception can be correctly invoked only with reference to the employee’s established workweek.
A Separate Exempt-Employee Workweek?
The FLSA recordkeeping regulations do not require that the same workweek be adopted for both non-exempt and exempt employees. On the contrary, employers may select different workweeks for these subgroups, and management might conclude that there are good reasons to do so.
For example, it might be that an employer uses a Thursday-through-Wednesday workweek for non-exempt workers to accommodate the steps that are necessary to compute wages based upon those employees’ varying hours worked. However, if the employer’s salaried, white-collar-exempt employees typically work from Monday through Friday, then perhaps it would make more sense to adopt a Monday-through-Sunday workweek for them, particularly when it comes to applying the limited exceptions permitting management to pay less than an employee’s full salary in certain circumstances.
The Bottom Line
Every employer should confirm:
◊ Whether it is required to select a workweek that will apply to employees treated as exempt under one FLSA provision or another, and
◊ If it is, whether it has made that selection and has committed the choice to writing.
Management should also take into account any applicable laws or regulations of another jurisdiction that might impose workweek-related requirements or restrictions that are different from the FLSA’s.
Click here for the original article.
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