Fridays with Frank – Sept 20, 2019

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Happy Friday!

Wow, what a great week. I spent three days in Cleveland, OH, at a conference aptly named I-9 Palooza! That’s right. Three days filled with all things I-9 and E-Verify!

Although nothing could match the excitement of I-9 Palooza, this week’s Fridays with Frank is still pretty cool.

Did You Just Call Me A Dummy?  No! However, LawLogix (the company behind I-9 Palooza!) published a great paperback and e-book called Form I-9 & E-Verify for dummies. Not as extensive as the 122-page USCIS Form I-9 Handbook for Employers (M-274), it’s an excellent resource for employers and HR professionals to understand the Form-I-9 and E-Verify process and requirements better.

Sometimes Ya Gotta Do What Ya Gotta Do  There are just some questions that keep me up at night. For example, if an eligible employee needs to take time off for a Family and Medical Leave Act (FMLA)-qualifying reason, can the employee decide whether the leave is designated as FMLA-protected? What if the employee is covered by a collective bargaining agreement that provides job-protected paid leave for specific family and medical reasons that could also be covered under the FMLA. Can the employees decide (or in some situations be required) to use the paid leave before taking FMLA leave? To help me sleep better, David Mohl, an attorney with Jackson Lewis, explained that the federal Department of Labor addressed these issues twice in 2019, first in a March opinion letter, and again with an opinion letter issued in September. Spoiler Alert: the answer was a resounding no!

Their Hands Must Be Cramping!  The federal Department of Labor (DOL) also issued six additional opinion letters recently, addressing several issues under the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). My friend Tammy McCutchen, a principal with Littler and former DOL Wage and Hour Administrator, provides a valuable summary of the opinion letters. She also introduces the DOL’s recently established Office of Compliance Initiatives (OCI), which is tasked with providing compliance assistance to employers.

I Love You All…Goodbye!  If you’re like me, you’ve left a job or two in your career. Some provided fond memories, and with others, I was thrilled never to look back. In this episode of, “Say What?” we’ll learn about Deanna Evans, who, in her resignation letter, called her seven years with her employer a “great experience,” and offered to do what she could to help “make this transition easier for the company,” including “assisting in recruiting and training [her] replacement.” Then she sued her former employer for hostile work environment constructive discharge. I’ll let Eric Meyer, partner with FisherBroyles and author if The Employer Handbook blog, explain the rest. Take it away, Eric!

Well, That’s A Hoot!  Back in 1997, Hooters Restaurants (think chicken wings, beer, and, umm, well you know the place) was sued for discrimination because they refused to hire males as servers. That’s when many of us became familiar with the term Bona Fide Occupational Qualification, or BFOQ. Title VII of the Civil Rights Act of 1964 lets companies discriminate, in this case on the basis of sex, where doing so is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business. Enter Sactacular Holdings, LLC d/b/a Adam & Eve (I kid you not, I couldn’t make up a company name like that if I tried!), a North Carolina company being sued by the Equal Employment Opportunity Commission for refusing to hire Christopher Kilby, or any male applicants based on their sex. You bring the wings I’ll get the beer, and we can watch this one together!

Thanks for spending a small part of your day with me and have a great weekend!


Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

 

Fridays with Frank – Sept 13, 2019

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Happy Friday the 13th!

If you’re like me, you can’t help laughing when you walk into an elevator and notice there’s no button for the 13th floor. (Spoiler Alert! Pressing 14 actually takes you to the 13th floor in those buildings!) I’m also probably tempting fate by admitting I think black cats are beautiful and I have no problem stepping on cracks in the sidewalk.

This week’s Fridays with Frank is guaranteed to be the best one yet. I was wearing my lucky socks when I wrote it!

How is the EEOC Like A Weather Vane?  Last week I reminded you that employers with 100 or more employees have until the last day of the month to file their EEO-1, Component 2 data. While that requirement still stands, this week the EEOC announced its changing direction again (like a weather vane, get it?) and won’t be collecting Component 2 data going forward. Apparently, the original estimate of the financial burden on employers to collect and report the data, $53.5 million, was off by $568.5 million. That’s quite a rounding error!

Termination Letters Aren’t Good Baby Shower Gifts  This episode of, “on what planet is that a good idea?” stars two employers with written policies on firing pregnant employees (no that’s not a typo). In her article, How NOT to Handle an Employee’s Pregnancy, my friend, and attorney, Janette Levey Frisch (aka the “EmpLAWyerologist“) looks at two recent cases where the EEOC filed lawsuits against employers for violating the Pregnancy Discrimination Act – which, by the way, has been federal law since 1978! 

Perception Is “Regarded As” Reality  Remember the old saying about making assumptions? Well, under the Americans with Disabilities Act (ADA), assuming someone has a disability can result in a lot more than looking like, ummm, a donkey. In Best Regards? Regarding an Employee as Disabled Also Violates the ADA, attorney Janette Levey Frisch provides valuable insight into the ADA’s “regarded as” standard.

Is That Your Final Answer?  Having multiple versions of why an employee was terminated is at best, a bad employment practice, and at worst, the shifting rationale is viewed as an attempt to mask an illegal motive. Stick to Your Story…, from Bradley‘s Labor & Employment Insights blog, explains how one employer’s shifting rationale for firing an employee soon after she returned from maternity leave led the court to doubt the employer’s entire decision-making process.

Is Calling The Boss A Motherf***er A Problem? Asking For A Friend  No problem at all, according to several decisions issued by the National Labor Relations Board (NLRB). Since 1979, the NLRB has consistently held that profane, vulgar, and racially- and sexually-charged language in the workplace is legally protected. However, as my friend Eric Meyer explains in his blog, The Employer Handbook, the NLRB is reconsidering its stance.

Thanks for spending a small part of your day with me and have a great weekend!


Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Fridays with Frank – Sept 6, 2019

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Happy Friday!

Why is it that short work weeks always seem to feel longer than a standard workweek? Especially when the short week is preceded by a vacation. Maybe it’s because I’m trying to get two weeks’ worth of work done in four days!

But, don’t worry, Fridays with Frank is a priority. So, let’s get to it!

She said, “Hi,” he heard, “Hello there, you sexy thing!”  Wow, no easing into potential conflict for me this week! In, Sexual Overperception Bias and Workplace Harassment, Jeffrey Polsky, an attorney with Fox Rothschild, discusses the role male sexual over-perception bias (yep, that’s a new one for me too!) may play in some forms of workplace harassment. Is this another lame attempt at excusing certain unacceptable behaviors? Absolutely not. I believe knowledge of potential (unconscious) biases and other factors that may lead to harassing behaviors and using that knowledge in my harassment prevention training, are essential steps in preventing harassing behaviors.

To Fire—Or Not To Fire—That is the Question!  Your employee commits an offense worthy of firing (i.e., workplace violence). Your zero-tolerance policy says fire them. Then, you realize firing them could result in a retaliation claim based on their recently filing a discrimination complaint. But, if you don’t fire them, what happens the next time an employee violates a zero-tolerance policy? This sounds like a situation my friend Eric Meyer, an attorney with Fisher Broyles, addressed recently in The Employer Handbook blog.

EEO-1, Component 2 Filing Deadline is September 20, 2019  A reminder for employers with 100 or more employees, EEO-1, Component 2 data by September 30, 2019. For the first time, covered employers must submit information about their employees’ compensation and working hours, broken down by certain demographic criteria, including gender.

EEOC Guidance on Completing EEO-1 Recognizes Non-Binary Gender Employees  With the requirement that EEO-1, Component 2 data broken down by gender, and several states allowing individuals to self-classify as non-binary on government-issued documents (such as a driver’s license or ID card), employers were left wondering how to comply. For clarification, our friends at Fisher Phillips issued a Legal Alert explaining the recent EEOC guidance on this important topic.

“That’s the way we’ve always done it.”  That’s what I hear when asking why an employer rounds their employees’ work time for payroll. Time rounding made sense when payroll was calculated using an abacus, and even when adding machines were all the rage. But, with the advent of spreadsheets, electronic time clocks, and payroll services (yes, I’m being snarky), it’s time to revisit that process. In his article, Time Is Money: A Quick Wage-Hour Tip on…Time-Rounding, Michael Kun, an attorney with Epstein Becker Green, provides some thought-provoking insights for your consideration.

Thanks for spending a small part of your day with me and have a great weekend!


Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

NYS Paid Family Leave Update-2020 Contribution Rate

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HORMEL

There are a few things we’ve all become accustomed to at this time of year: kids returning to school, cooler temperatures at nights, pumpkin spice in everything imaginable (I detest everything pumpkin spice, so I would never joke about it, Hormel is really selling Pumpkin Spice SPAM), and NY State publishing the updated employee contribution rate for paid family leave.

On August 30, 2019, the NY State Department of Financial Services published its updated Paid Family Leave (“PFL”) benefits premium rate for 2020.

Beginning January 1, 2020:

Employee contribution rate                             0.27%   (up from 0.153% in 2019)

Maximum annual employee contribution      $ 196.72   (up from $107.97 in 2019)

Maximum length of leave                               10 weeks   (no change from 2019)

Benefit rate (as a % of AWW*)                        60%   (up from 55% in 2019)

Maximum weekly benefit amount*                $ 840.70   (up from $746.41 in 2019)

Maximum total benefit*                                  $ 8,407.00   (up from $7,464.10 in 2019)

The updated rate is said to reflect current PFL utilization, as well the benefit increase effective January 1, 2020. To put things in perspective, the employee contribution rate for 2020 increased 77% from the 2019 rate, and 215% from the 2018 rate!**

* The NYS Average Weekly Wage (NYSAWW) is $1,401.17. The maximum weekly benefit is set at 60% of the NYSAWW ($1,401.17 x 0.60 = $840.70). The maximum total benefit is equal to the maximum weekly benefit multiplied by the maximum length of leave ($840.70 x 10 weeks = $8,407.00). An employee’s weekly benefit is equal to the lesser of the maximum weekly benefit amount, or 60% of the employee’s AWW.
** 2018 maximum employee contribution rate 0.126%

Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Fridays with Frank – Aug 30, 2019

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Happy Friday!

As my time away with family winds down, I’ve been thinking about the importance of staying connected.  Not just with the family and friends I call or text daily, but with other friends I truly value.  So, I’ve been making a conscious effort to reach out to one or two of those special people each day, and it’s been fantastic.  Over the Labor Day weekend, I challenge you to call or send a quick text to someone you value but don’t connect with often enough.  I guarantee it will make you both happy.

As a special Labor Day treat, I’ve selected reading materials that pair well with a cup of coffee, a glass of wine, or your favorite adult beverage–mine is pictured above!  So, grab a drink, relax, and enjoy your long weekend!

The Current I-9 Form Expires Tomorrow, Now What?   Yes, that’s correct, the current I-9 form expires 08/31/2019 (did you notice I used the proper date format?).  However, as many of us expected, the new version of the I-9 hasn’t been issued.  Amazing how the I-9 expiration date seems to sneak up on USCIS every time!  Also as expected, USCIS announced on 08/27/2019 that employers should continue using Form I-9 with the 08/31/2019 expiration date “until further notice.”

What to Expect from the Next DOLSecretary   It’s official.  As I mentioned in a previous Fridays with Frank post, Eugene (Gene) Scalia—son of the late Supreme Court Justice Antonin Scalia—has been officially nominated by President Trump to be the next Secretary of Labor.  This article from Human Resource Executive provides some background, what’s being said about the nominee, and how Scalia is likely to lead the DOL.

Sexist Windshield Wipers?   Here’s one of those, “on which planet did they think this would be acceptable?” moments.  Bosch Automotive posted a Facebook ad for windshield wipers…makes sense so far, right?  Unfortunately, the ad showed a woman passing in front of a car’s windshield, with the question, “don’t you wish to see this clearly?”  What’s worse, the post included the line, “the best wiper gives you the best view!”  I’m guessing there will soon be an open position or two in their social media marketing department.

How About Some Tips for Paying Tipped Employees?   Another great article from my friend, and attorney, Janette Levey Frisch (aka the “EmpLAWyerologist“).  This time Janette looks at the complexities of paying tipped employees and, as she often does, uses a recent court case to answer the myriad of questions employers and HR professionals have on the topic.

What Real HR Looks Like   I thought I’d end the week with a funny (as in, I laugh because otherwise I’d be cursing and pulling my hair out) note.  I’m always amazed at the differences between what the outside world thinks HR is all about (firing people, meetings, firing people, going to conferences, firing people, and just for fun, firing more people) and what my peers and I actually face on a daily basis.  In her article, Suzanne Lucas (aka, @RealEvilHRLady) provides some insights (see definition of funny, above) into what happens behind the closed doors of the HR office.

Thanks for joining me, and have a great long weekend and short week ahead!


Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Fridays with Frank – Aug 23, 2019

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Happy Friday!

I’m on vacation (or as close as I ever get to actually taking time off) with my family, so this week I’m going to share links to a few of the great articles I’ve been reading.

Is a New FLSA Overtime Rule Finally in the Homestretch?  Ok, I didn’t read this first article, I wrote it.  For many of us, trying to predict when—or even if—the Fair Labor Standards Act (“FLSA”) overtime (a.k.a., minimum salary) rule will be updated has become like betting on a horse race. Com

What We Can Learn From the Long Beach Marriott About Preventing Workplace Shootings  In this article, my great friend, and attorney, Janette Levey Frisch (aka the “EmpLAWyerologist“) explains how employees and management at the Long Beach (CA) Marriott did the right things to stop—what likely would have been—another disastrous workplace shooting, and the lessons employers should learn before faced with similar circumstances.

Sex Discrimination Works Both Ways  In another enlightening article, Janette Levey Frisch explores how parental leave and compensation policies and practices that treat men and women differently can lead to charges of sex discrimination.

DOL Confirms FMLA Covers IEP Meetings With Therapists at School  My friends at Ogletree Deakins discuss a recent opinion letter from the federal DOL, Wage and Hour Division, that confirms a parent is entitled to job-protected time off from work under the Family and Medical Leave Act (“FMLA”) to attend a meeting at school to discuss their child’s Individualized Education Program (“IEP”).

New York Expands Harassment Laws, Protections of Religious Attire, Clothing, or Facial Hair   Jackson Lewis provides our last article for this week’s Fridays with Frank.  In case you weren’t aware (and missed my July Daily Record article), recent updates to the New York State Human Rights Laws (“NYSHRL”) include significant changes that make it easier for employees to show they’ve been harassed, and much more difficult for employers to defend against almost any allegations. (Also, although not included in the Jackson Lewis article, NY State followed California’s lead with updates to the NYSHRL which now protect employees against discrimination based on “natural hairstyles or textures associated with race.)

Thanks for joining me, and have a great weekend and week ahead!


Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.

Fridays with Frank – Aug 16, 2019

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US Capitol-side

Welcome to HR Compliance Notebook!

The HR Compliance Experts team is excited to launch our blog, HR Compliance Notebook, with something we’re calling Fridays with Frank.  In my Fridays with Frank posts, I’ll share news and updates regarding state and federal legislation, regulatory information, links to employment-related articles, and maybe even a snarky comment or two.

I’d like this to be a two-way conversation, so, respectful and thought-provoking (and yes, snarky) comments are welcomed and encouraged.  Also, let me know what you enjoy–and what could be better–about Fridays with Frank, or the blog in general.  Use the comment section or send an email to theexperts@hrcexperts.com.

Thanks for spending a small part of your day with me!


No August Recess for Employers

The federal Department of Labor is a busy place

The federal DOL is a busy place lately. As you may know, Alex Acosta stepped down as Secretary of Labor on July 12, 2019, with deputy Secretary Patrick Pizzella stepping in to lead the agency on an interim basis. Pizzella, who is unquestionably pro-business, appears to have accelerated the pace of activity at the DOL. In addition to issuing several opinion letters since July, the DOL submitted its long-awaited final overtime rule to the Office of Management and Budget for review earlier this week.  This long-awaited rule updates the (minimum) salary threshold for the FLSA’s “white collar” exemptions.

Within days of Acosta’s resignation, President Trump announced his intent to nominate Eugene (Gene) Scalia—son of the late US Supreme Court Justice Antonin Scalia—to be the next Secretary of Labor. Currently a partner in a Washington, DC law firm, Scalia also brings government experience to the table. He was the solicitor (chief attorney) of the DOL under President George W. Bush and served at the Department of Justice as Special Assistant to the Attorney General.

As has been the case with virtually all the President’s nominations, the road to Scalia’s confirmation is expected to be lengthy and the ride extremely bumpy.  So, I wasn’t surprised when more than two dozen members of Congress sent President Trump a letter fervently opposing the nomination Eugene Scalia.  (CLICK HERE to read the letter.)


NY State significantly changes laws regarding sexual harassment…again!

As expected, Governor Andrew Cuomo signed another landmark piece of legislation amending New York’s Human Rights Law. These sweeping changes add provisions to the law that, among other things:

  • Expand the application of the new standards beyond sexual harassment to now include alleged harassment based on an individual’s membership in any protected class;
  • Eliminate the “severe or pervasive” legal standard, instead validating any allegations of misconduct that appear to be more than “petty slights or trivial inconveniences;”
  • Significantly increase the protections provided to employees, and adds protections fornon-employees;
  • Expand what is required of employers regarding employee harassment prevention training; and
  • Extend the time individuals have to file harassment claims with the NYS Division of Human Rights, from one (1) year to three (3) years. 

CLICK HERE to read my article on this topic, NYS Raises the Stakes and Lowers the Bar on Harassment Laws…Again!, published in The Daily Record, July 16, 2019.


Posted by Frank Cania, president of HR Compliance Experts LLC.

Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.


Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.

CLICK HERE to learn more about Frank Cania and HR Compliance Experts LLC.