Telework has touched so many things in our world, and now the Department of Labor is reacting with some common sense guidance. When so many workers are at their homes, how does an employer comply with the many (many) governmental requirements to post notices about employee rights? Prior to COVID, the employer would post them in the break room. But now, the “break room” is in each employee’s own home.
On December 29, 2020, the Wage and Hour Division of the DOL issued some guidance addressing the laws under its control. Its general principles are as follows:
Laws that require a poster to be posted continuously (e.g., the wage and hour or FMLA poster): The DOL will consider electronic posting an “acceptable substitute” if: (1) all of the employer’s employees exclusively work remotely, (2) all employees customarily receive information from the employer via electronic means, and (3) all employees have readily available access to the electronic posting at all times. If an employer has both in-person workers and teleworkers, the DOL recommends both traditional hard copy posting and electronic posting such as on a company intranet.
Laws that require individual notices (such as the Service Contract Act): The DOL will accept electronic delivery “only if the employee customarily receives information from the employer electronically.”
Generally, the DOL requires that the employer provide access to anything electronically posted and that it communicate to the employees about this access. Employees know they can walk to the break room and see the posters. In a new world of telework, employees need to receive communications about the location of, and how to access, this information electronically. If the information is on the intranet, but no one knows of it, it is of no use and the DOL will not consider it properly posted or available to the employees. The guidance has additionally law-specific information if you want to read more.
There is much debate about what is to come as the end of 2020 draws near. Certainly we all hope for good news on the medical front with steady progress being made towards vaccines and treatments. But the impact of COVID-19 continues to wreak havoc on other parts of our lives, including our workplaces. State and local governments continue to debate the appropriate level of restrictions. The CDC continues to update its guidance as the science continually evolves on this new virus. Employers continue to make the best decisions they can.
One of the laws that passed in March 2020 that impacted employers was the Families First Coronavirus Response Acts (FFCRA). The FFCRA generally applies to private employers employing fewer than 500 employees and to public employers. It provides for paid leave for COVID-19 related events; up to 80 hours for six COVID-19 related categories and up to an additional 10 weeks for leave when employees have no childcare/school for their child(ren) due to COVID-19. The Department of Labor is charged with investigations and enforcement. (You can check your poster or consult legal counsel for the many nuances of this law.)
As was true of virtually everything about COVID-19 in March, the FFCRA was enacted quickly and then underwent many changes. But one thing has not (yet) changed and seems unlikely to change at this point. The FFCRA applies only to leave taken between April 1 and December 31, 2020.
What does this mean? Assuming Congress and the President do nothing regarding this before December 31, consider the following:
1. Now would be a good time to look back over the absences that have occurred from April 1, 2020, through December 31, 2020 (the effective period of the law). Did you properly permit and pay for absences covered by the FFCRA? If you did not, consider fixing it now before year end.
2. The FFCRA provides that amounts properly paid under the FFCRA would be reimbursed by the federal government through tax credits. Now is the time to ensure your business has done what it needs to do to take advantage of the tax credits.
3. It is unlawful to discharge, discipline, or otherwise discriminate against an employee who takes leave under the FFCRA or who pursues their rights under the FFCRA.
We cannot know what 2021 will bring, but every employer covered by the FFCRA should take time in December of 2020 to review its compliance with this law and to maximize its use of the tax credits if applicable. Seek competent legal and/or tax advice as needed.
By Kristen L. Brightmire, firstname.lastname@example.org
It’s August in Oklahoma. Families would ordinarily be buying school clothes and supplies, getting their children ready to head back to school. But there is nothing ordinary about 2020.
Oklahoma has no statewide mandate regarding schools. Across the state, school districts, charter schools, and private schools are making decisions – even as of this writing – as to whether and how to start the school year. Some schools have moved up their start date while others have pushed it back. Some schools will have in-person instruction five days a week, while others will have students in-person only on certain days, and others will have distance learning exclusively. Even for schools offering in-person instruction, many have suspended their afterschool care programs. And, of course, every parent has been told there could be changes.
While this is an extraordinary challenge and disruption for the parents and children of Oklahoma, it is likewise a challenge and disruption for Oklahoma employers. No article can address all of the scenarios Oklahoma families will face as they navigate these issues, but we wanted to touch upon the topic in hopes of preparing employers. Continue reading
Election Day is almost upon us – Tuesday, November 6, 2018.
Most every state has laws protecting the rights of people to vote. In Oklahoma, employees have the right to have time off of work – if needed – so they may cast their vote. You need to understand those rights so you are prepared.
Oklahoma employers cannot penalize an employee (who is a registered voter) with loss of wages or of benefits and cannot cause an employee to suffer any adverse employment action for exercising her right to vote.
How and when must an employee make a request? Continue reading
If you are an Oklahoma resident, you are no doubt aware of the possibility that on April 2 many school districts will shut down as teachers, administrators, and staff walkout in protest of the lack of education funding in Oklahoma. Why is this an issue in an employer’s blog? Well, we can discuss the need for an educated workforce or the economic benefits of a well-regarded educational system, but right now there is a more immediate concern – your employees with school-aged children.
On April 2, it is likely your employees with school-aged children will have to make alternative arrangements for those children or be absent from work. This will undoubtedly be a significant stress on your employee (and, thus, on your company). Continue reading
On April 18, 2017, President Trump signed his Executive Order on Buy American and Hire American. It is important you read the fine print on this, like so many things these days that are reduced for the purposes of a hashtag.
This is an executive order. It does not apply to private businesses. It is not a law passed by Congress. It applies to the executive branch of the government. Moreover, despite its title, it does not reflect a preference for hiring “Americans” as such a preference would be illegal.
Title VII of the Civil Rights Act – a law passed by Congress in 1964 – prohibits discrimination in employment based upon, among other things, one’s national origin. Continue reading
By Kristen L. Brightmire
So what happened to cause Judge Dowdell to declare a jury’s verdict so unreasonable it had to be thrown out, a decision by the way which the Tenth Circuit Court of Appeals has just upheld? It’s an interesting story.
If you are from the Tulsa area, you are undoubtedly familiar with the El Tequila restaurants. In December 2010, an employee lodged a complaint with the Department of Labor’s Wage and Hour Division (DOL) which prompted an investigation into its Harvard location. As is often the case, a time was set for the DOL investigator to report, review records, and interview certain employees. As a result of this initial investigation, all seemed fine but for some recordkeeping violations. The investigation was closed.
In the following months, more employees complained. The DOL opened a second investigation. This round, the DOL decided a surprise visit was warranted. Lo and behold, the DOL discovered a different set of records revealing violations of the Fair Labor Standards Act. Employees were not being paid minimum wage or overtime for the hours they were working. The records the DOL had reviewed previously had been doctored.
The employee interviews were different as well. The employees not only said they worked hours for which they were not properly compensated, they told the DOL investigator they had been instructed by owner Aguirre to lie during the first investigation.
By Kristen L. Brightmire
These are interesting times in which we are living to be sure. Political activism is seeing an uptick. On Friday, February 17, we saw the General Strike which was designed to be a nationwide protest against President Trump. Also touted as a Day without Immigrants, it was a call for persons to stop working and instead join a demonstration or participate in a service project. Another similar strike is gearing up for Wednesday, March 8.
There were other stories about how employers and employees handled these issues, and we were called upon to advise clients as well. Without commenting on any specific situations for obvious reasons, it is important to talk about this issue.
You should expect it will come up again, perhaps as soon as March 8. Before then, you should think through some of these issues and how you will respond.
By Kristen L. Brightmire on February 1, 2017
I don’t make New Year’s resolutions, but this year I made a decision. I needed to try something new professionally. For years, I have admired my friend Jon Hyman’s blog, http://www.ohioemployerlawblog.com/p/about-jon-hyman.html. While I am not going to attempt to replicate his by any means, I liked the idea of having a way to communicate more quickly. So without further ado, the blog is launched.