When must employees be paid for off-the-clock overtime?

Just about a year ago, in Moran v. Al Basit LLC, the 6th Circuit seemed to hold that all an employee needs is his or her own testimony to establish an entitlement to unpaid compensation under the FLSA. At the time, I expressed concern that such a holding might lead to more jury trials in off-the-clock wage/hour cases:

This ruling is scary, and has the potential to work extortionate results on employers. If all an employee has to do to establish a jury claim in an off-the-clock case is say, “The employer’s records are wrong; I worked these approximate hours on a weekly basis,” then it will be impossible for an employer to win summary judgment in any off-the-clock case.

Last week, in Craig v. Bridges Bros. Trucking [pdf], the same court offered some clarity on, and maybe some relief to, employers on this issue.

WIRTW #413 (the "rock star" edition)

I gotta say, I love watch the evolution of my daughter as a performer. Case in point: last weekend’s epic Weezer vs. Green Day shows. Further case in point: Green Day’s Basket Case.


Not be outdone, check out brother Donovan’s keyboard skills and dance moves (starts at around 0:45):
 

Here’s the rest of what I read this week.

Mom cannot sue employer for discrimination against her son, court says

Brittany Tovar claimed that her employer, Essentia Health, discriminated against her when her employer-sponsored medical insurance denied her son gender reassignment services and surgery.

In Tovar v. Essentia Health (D. Minn. 5/11/16), the court had little issue dismissing Tovar’s claims because the alleged target of the discrimination, her son, was not an employee protected by Title VII:

I scream, you scream, we all scream … for the FLSA’s new salary test

At 3 pm this afternoon, Vice President Joe Biden, Senator Sherrod Brown, and Secretary of Labor Tom Perez will appear at Jeni’s Ice Cream in Columbus, Ohio, to announce the Department of Labor’s new overtime rule.

The rule, as expected, increases the salary level at which one qualifies as an exempt white-collar employee ($913 per week; $47,476 annually), while leaving alone (for now) the duties one also must meet to qualify. It is expected that 4.2 million white-collar workers will now qualify for overtime.

The effective date of the final rule is December 1, 2016, giving employers more than six months to digest the new rules, reclassify workers, and comply with the new salary test.

In advance of today’s announcement, late yesterday the DOL published the Final Rule, along with some guidance for employers. It also published this handy chart, comparing the current regulations, last year’s proposed regulations, and the final regulations.

EEOC’s final rules on employer wellness programs provides clear path for employers

Yesterday, the EEOC published its long-awaited rules that describe how the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act apply to wellness programs offered by employers that request health information from employees and their spouses. Both rules take effect July 18, 2017.

The $15 minimum wage is an employee-relations nightmare

Last week, Cleveland’s City Council introduced legislation to raise the city’s minimum wage to $15. Mayor Frank Jackson has come out against the bill, stating that he opposes the legislation because it puts the city at a competitive business disadvantage against other cities: “I continue to support a minimum wage increase if mandated by the state or federal government and not just for the City of Cleveland. For the full economic impact this has to be a united effort throughout Ohio and the United States.”

WIRTW #412 (the “duet” edition)

Those of you who’ve been readers for any length of time know of my love of all things Old 97’s. Well, they are back in town next Wednesday at the Beachland Ballroom. Look for Norah, my wife, and me right up in front of the stage.

In promoting the show, Rhett Miller, the band’s lead singer, gave an interview to Scene Magazine. What did Rhett say was his “favorite Cleveland memory”? Singing with Norah, of course.

I had a solo gig at the Music Box, which is a great room, and there and there was a sweet little girl who got up on stage and sang “Firefly,” a duet I do. She was so brave. It’s such a rare thing. It’s so dangerous to pull a stranger up on the stage particularly when it’s a little kid but she totally nailed it.

We forgive Rhett that time has dulled his memory of the song they actually sang (it was The New Kid). But that’s more than ok. How freakin’ cool is it for Norah that a bona fide rock star’s best memory is singing with her?

Here’s the rest of what I read this week:

President signs the Defend Trade Secrets Act of 2016—what employers need to know

Yesterday, President Obama signed into law the Defend Trade Secrets Act of 2016. It creates a uniform, federal standard for the protection of corporate trade secrets.

What do employers need to know about this new law?

NLRB positively botches decision over “positive workplace” policy

Do you have a “Positivity Policy” like the following in your employee handbook?

The Company expects all employees to behave in a professional manner that promotes efficiency, productivity, and cooperation. Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.

What could be wrong with a workplace policy that tells employees to “maintain a positive work environment”? Everyone loves, positivity, right?


Everyone, that is, except the NLRB.

EEOC issues new guidance on leaves of absence under the ADA

What does the EEOC want you know about your treatment of employees’ leaves of absence under the ADA? A whole bunch, according to this guidance, published yesterday by the agency.

The guidance, aptly entitled Employer-Provided Leave and the Americans with Disabilities Act, addresses, according to the EEOC, “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation,” which the agency believes “serve as systemic barriers to the employment of workers with disabilities.”

Happy blogiversary to me

Nine years ago today, I launched the Ohio Employer’s Law Blog.

During that span, millions have read 2,421 posts (OMG!).

WIRTW #411 (the “Green Day” edition)

I’m pretty excited for my daughter’s next School of Rock performance. The show is called “Nerds vs. Punks”, whch pits two of 1994 greatest albums against each other, Weezer’s Blue Album and Green Day’s Dookie.

Here’s a 15-second sneak peak of what you’ll see at Brother’s Lounge on the afternoons of May 14/15.

A video posted by Jon Hyman (@jonhyman) on Apr 5, 2016 at 4:42pm PDT

Here’s what I read this week:

Amended medical marijuana bill offers employers higher protections

Last month, I reported on the introduction of Ohio House Bill 523, which would legalize medical marijuana in Ohio. I suggested that the bill’s protections for employers, which go further than those of either of the two competing November ballot measures, are a good start, but would likely need some tweaks to provide employers all of the protections they need.

Yesterday, employers got some much needed help, with an amended H.B. 523 [pdf], which significantly expands the rights of employers in regard to employees legally using marijuana.

Transgender bathrooms is a solution in search of a problem

In the blogging world, when you snooze, you lose. Yesterday, my fellow bloggers were all over the EEOC’s publication of guidance on bathroom access for transgender employees:

• Eric Meyer’s Employer Handbook Blog: Not letting transgender employees use the restroom of their gender identity is sex discrimination 
• Phil Miles’s Lawffice Space: EEOC issues transgender employee fact sheet 
• Robin Shea’s Employment & Labor Insider: EEOC posts fact sheets on LGBT discrimination, transgender issues 
• Dan Schwartz’s Connecticut Employment Law Blog: Bathroom Access Rights Guaranteed By Title VII
• The Russ Runkel Report: EEOC & OSHA on transgender bathrooms access

Here’s the bottom line.

Looks like the DOL just put its new salary test on the discount rack

It’s been a few weeks since we last peeked in on the DOL’s upcoming increase for teh FLSA’s salary test (Winter is coming … for the FLSA’s salary test). It’s long been expected that the DOL would increase the salary test for the administrative, professional, and executive exemptions from $23,660 per year (or $455 per week) to an expected $50,440 per year (or $970 per week). Now, however, it’s been reporting that the DOL has had a change of heart, and will step up the salary threshold to $47,000 per year (or a nice, round, $903.85 per week).

Maternity leave vs. “Me-ternity” Leave, and what it means for work-life balance

I read with great interest the following story in the New York Post, entitled, “I want all the perks of maternity leave — without having any kids.”

The story, written by Meghann Foye, a self-professed overworked, yet childless, woman in her mid-30s (and author of a recently published novel called “Meternity”), argues that all women deserve “me” time away from work, and that maternity leave shouldn’t be limited just to new moms.

WIRTW #410 (the “odd jobs” edition)

What is the oddest job in America? It might be the folks who blur to the naughty bits on Discovery Channel’s Naked and Afraid. From The Seattle Times:

“This is a totally weird work environment,” said Shaun O’Steen, the 45-year-old leader of the team, which calls itself the Blur Man Group. “I mean, what job can you say, ‘Oh, my God, look at that penis,’ and not have to worry about HR?” …  For O’Steen, the task is slightly complicated by one more fact: His desk is opposite that of a 27-year-old who is the only woman and, by far, the youngest member of the blurring group. She is also his wife.

No matter how weird you think your job is, I’m going to bet it’s not this weird.

Here’s what else I read this week:

Let’s not forget about damages when litigating our cases

When employers are sued, they do not put enough thought into damages. The typical response is, “We didn’t discriminate; we aren't liable.” But, the reality is, unless you win a case on summary judgment (sadly, an unlikely result), you need to think about what a case is potentially worth and how much a plaintiff can potentially cover. For starters, it will drive settlement discussions. Moreover, and more importantly, if a case does not settle, you will want to whittle that number down as low as possible to limit the potential exposure at (gasp) trial.

Ohio tries again to add LGBT rights to employment discrimination law

As I’ve said more times than I can count, I think it’s repulsive that, in 2016, it is lawful under Title VII and the employment-discrimination laws of most states to discriminate because of one’s LGBT status.

S.B. 318 [pdf], introduced in late April, looks to change this aberration in Ohio.

DOL publishes new employer FMLA guide

Since I recently cut a check to the IRS for the balance due on my taxes, I thought I’d take today’s space to review how the federal government spends our tax dollars. Today’s examination? The Department of Labor’s newest publication, The Employer’s Guide to the Family and Medical Leave Act [pdf].