Fridays with Frank – Oct 11, 2019

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Happy Friday!

It’s been a busy week for everyone. In fact, for many of the attorneys and HR professionals I’ve spoken to, the last several weeks have been a blur. We’ve all been conducting countless Sexual Harassment Prevention Training sessions as employers scrambled to meet the Wednesday, October 9 deadline set by NY State. (If you didn’t make it, give me a call to discuss your options.) With that done, for the time being, I don’t know what I’ll do with all the extra time!

The gang’s all here!  Well, almost. The U.S. Supreme Court opened its 2019-2020 term on Monday, October 7, 2019, without Justice Clarence Thomas. In his opening comments, Chief Justice John Roberts said Justice Thomas was “indisposed” due to an illness. However, as Justice Ginsberg did during her absence from the Court last Term, Justice Thomas will listen to the recorded sessions and will participate in deciding the cases presented to the Court while he is absent.

The definition of “sex”  On Tuesday, the Supreme Court heard oral arguments in three LGBT workplace rights cases: Bostock v. Clayton County and Zarda v. Altitude Express, Inc. (consolidated) and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. In Bostock and Zarda, the Court is asked to decide whether discrimination based on sexual orientation is included in Title VII’s ban on discrimination “because of sex.” Harris presents a similar question, whether gender identity is also included in Title VII’s prohibition on discrimination “because of sex.”

The deep end of the (tip) pool  Following up on its April 2019 bulletin, which clarified tip pooling under the Fair Labor Standards Act (FLSA), the federal Department of Labor (DOL) announced its proposed rules on the issue. As James McBride, an attorney with Ogletree Deakins, explains, the DOL confirmed its interpretation that employers that do not take a tip credit are now permitted to include back-of-house employees in the tip pool. The comment period for the proposed rules, which are not final, is open until December 9, 2019.

Higher overtime threshold complicate benefits plans  Although the new federal overtime rule appears to have minimal impact on employers in NY State, it’s important to remember the State’s overtime threshold will increase December 31, 2019. It’s also important to understand the effect those changes may have on benefits plans. Benefits eligibility, premium sharing levels, matching contributions to retirement plans, and discrimination testing should all be evaluated before the end of the year.

There’s a fact sheet for that!  The federal Department of Labor (DOL) recently published USERRA Fact Sheet 1, which addresses several issues involving service members and their pension rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Will there be a Fact Sheet 2? I’ll let you know.

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 – Oct 4, 2019

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toy carsHappy Friday!

You’ve heard it (and maybe said it yourself) countless times this week: I Can’t believe it’s October already! Or, as my father, Sam Cania, would say, “before you know it, Christmas will be here and gone!” I didn’t understand the meaning of that statement back then, but it’s all too clear now that our children are grown and we have a grandson!

Speaking of our toddler grandson, Connor, he’s waiting patiently for me to play with his trucks. So, as much as I enjoy spending time with you, I have a play date!

Tic, tic, tic…time is running out!  The deadline for the Sexual Harassment Prevention Training required by NY State is next Wednesday, October 9, 2019! Still have employees that have not completed sexual harassment prevention training? HR Compliance Experts is offering an online, on-demand training program—at the special price of $25.00 per employee—for last-minute compliance. Email theexperts@hrcexperts.com for more information or to register your employees.

A flag on the play!  Rontez Miles, a NY Jets player, is suing the National Football League (NFL) for disability discrimination under applicable state and federal law. Miles has alopecia areata, a condition causing an optical sensitivity to light. To mitigate the effects of this condition, Miles played his entire career with an eye shield, in addition to his helmet and faceguard. That changed when, before a 2017 preseason game, an NFL official “demanded” he remove the shield or not play in the game. Playing without the shield, and unable to take appropriate defensive measures due to the bright sunlight, Miles suffered a broken orbital bone when he “took a thumb or finger directly to the eye.” Ouch!

Who’s the party pooper now?  A Manhattan medical office is being sued by the Equal Employment Opportunity Commission (EEOC) for religious discrimination. In December 2018, Pediatrics 2000 fired an administrative assistant after she requested not to attend a company party because it would violate her religious practices as a Jehovah’s Witness. According to the suit, the employer excused other employees from attending the party for “non-religious” reasons. How was she fired, you ask? A text from the owner that read, “this is your last day of employment. We can’t tolerate religious privileges from anyone.” 

If you can’t say something nice…  According to my mom, that phrase ends with, “…don’t say anything at all.” Somebody at Kickass Masterminds, an Austin, TX marketing company, didn’t learn that lesson. After Emily Clow applied for a “Kickass” internship, she was shocked to find a photo of herself in a swimsuit on the company’s Instagram story, along with, “PSA…do not share your social media with a potential employer if this is the kind of content on it. I am looking for a potential marketer–not a bikini model.” Did I forget to mention the company was founded and is primarily run by women? 

NY State strengthens protections for domestic violence victims  Although NY State Human Rights Laws (NYSHRL) currently bar workplace discrimination against domestic violence victims, Governor Cuomo recently signed legislation that will grant additional protections to these employees. According to an alert from Kramer Levin, effective November 18, 2019, the NYSHRL will identify prohibited discriminatory practices and require employers to provide specific accommodations to employees who identify as victims of domestic violence. 

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 27, 2019

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Happy Friday!

September has been a whirlwind! First, with the October 9th deadline quickly approaching, I’ve conducted countless Sexual Harassment Prevention presentations (NY employers, remember the October 9th deadline!). Then, in addition to I-9 Palooza!, I spent three days at the NY State SHRM Annual Conference in Albany, where I had the pleasure to present on both the US Supreme Court and legislative advocacy for HR professionals.

But, the world doesn’t slow down because I’m busy. So let’s catch up together with another exciting edition of Fridays with Frank!

Welcome Mr. Secretary  On Thursday, the US Senate confirmed Eugene (Gene) Scalia as the Trump Administration’s new Secretary of Labor. The Senate voted along party lines (53-44) to confirm Scalia, a former solicitor of labor during the George W. Bush administration, and son of deceased Supreme Court Justice Antonin Scalia. The Secretary takes over the Department of Labor at a busy time, with a new overtime rule effective January 1, 2020, and other regulatory changes at various stages of the approval process.

Wow! It Only Took 15 Years!  On Tuesday, the federal Department of Labor (DOL) issued its updated final overtime rule. As you may remember, the DOL, under the Obama Administration, issued an update to the overtime regulations raising the minimum annual salary for the white-collar exemptions to more than $47,000. A federal judge in Texas halted the rule from being implemented just days before its December 1, 2016, effective date. The Trump Administration’s overtime rule, effective January 1, 2019, increases the minimum annual salary for exempt employees to $35,568 ($684/week). However, employers in states with higher minimum salary requirements–like NY and CA–must comply with state rules.

That’s Not On The Menu!  Closer to home, on Monday the Equal Employment Opportunity Commission (EEOC) announced it had filed a lawsuit against Green Lantern Inn, Inc., dba, Mr. Dominic’s on Main, located near my home in Fairport, NY. According to the lawsuit filed in US District Court, the restaurant’s head chef sexually harassed two female employees. His conduct included inappropriate physical contact; repeated sexually inappropriate, hostile, and offensive comments; and explicit requests for sex.

Does FMLA Stand For The Friday and Monday Leave Act?  Anyone who has administered the Family and Medical Leave Act (FMLA) knows its coverage is intentionally very broad. Exactly how broad? For one employee, playing golf on days designated as intermittent FMLA leave for severe shoulder pain was out of bounds. But, you know it doesn’t end there. Check out Eric Meyer‘s explanation of what happened next, and some valuable employer and HR takeaways, in The Employer Handbook.

Discrimination, With A Twist  Unfortunately, some employers continue to discriminate in the hiring process. You know the scenario; employer discourages minority applicants, imposes unjustified “English-only” requirement, hires less qualified non-minority candidates, etc. What’s the twist? Marquez Brothers International, a producer and distributor of Mexican-style foods, discouraged and refused to hire, non-Hispanic applicants for unskilled production and warehouse positions. Among the employer’s unlawful tactics outlined in the Equal Employment Opportunity Commission’s $2 million settlement with the employer, an unnecessary “Spanish-only” requirement.

Lastly, a belated Happy National HR Professionals Day to my team at HR Compliance Experts, and all my friends and colleagues!  

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.

 

New Overtime Rule Issued By US Dept. of Labor

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On September 24, 2019, Acting Secretary of Labor Patrick Pizzella announced that “for the first time in over 15 years, America’s workers will have an update to overtime regulations that will put overtime pay into the pockets of more than a million working Americans.”

Effective January 1, 2020, updates to the federal Fair Labor Standards Act (FLSA) overtime regulations include: 

        • An increase to the minimum salary amount for “exempt” employees to $684 per week ($35,568 annualized);
        • An increase to the minimum annual compensation required for the “highly compensated employee (HCE)” exemption to $107,432 annually; and
        • A new rule allowing employers to use non-discretionary bonuses, commissions, and other incentive payments paid at least annually to satisfy up to 10 percent of the minimum salary requirement.

Pizzella described the DOL’s most recent efforts to update the overtime rule as bringing “a common-sense approach that offers consistency and certainty for employers as well as clarity and prosperity for American workers.”

The one remaining question is, will any of those opposed to the new rule–many of whom supported the Obama Administration’s overtime rule setting the minimum salary at approximately $47,000–mount legal challenges in an attempt to stop the rule for taking effect? I’m pretty sure they will. So, stay tuned!

NY STATE EMPLOYERS: Although state Labor Standards include higher minimum salary amounts for the executive and administrative exemptions, there are other situations where the federal overtime regulations apply. NY employers should become familiar with the State’s Labor Standards, as well as the rules under the FLSA, to ensure they are following the appropriate regulations in each situation.

HR Compliance Experts offers a number of services for employers of all sizes. Our HR Compliance Risk Assessment is designed to identify potential noncompliance issues, including FLSA and State Labor Standards violations, provide solutions to resolve even the most complex issues, and follow-up to ensure compliance going forward.

Please contact me at frank@hrcexperts.com, or 585-416-0751, with questions, or for more information on the services provided by HR Compliance Experts.


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 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.