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Volume 6, Issue 7
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July 2017
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| Domestic Violence in the Louisiana Workplace, Part 9: 2017 Legislative Update |
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It is not a matter of if, but when an employer will be confronted with a challenging domestic violence-related issue in the workplace. Domestic violence not only causes lost productivity and increased costs for employers, but also raises a host of potential legal obligations and liabilities that employers cannot afford to overlook. In this series, Labor and Employment attorney Rachael Coe will discuss the various ways that domestic violence impacts the Louisiana workplace and what employers need to know in order to protect their employees, their customers, and themselves.
Employers take note: some of Louisiana's domestic violence laws are changing on August 1, 2017 to expand coverage and protections to same-sex couples and dating partners, and employers need to be aware of the Legislature's actions in order to comply with their legal obligations and reduce various legal risks.
Continue reading Rachael M. Coe's article here.
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| Labor Department to Revise Obama Era Overtime Rule |
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| On June 30, 2017, government lawyers asked a federal appeals court to affirm the Department of Labor's right to use salary levels to determine eligibility for overtime pay. The request comes as the DOL is planning to revise the Obama era overtime rule. The DOL wants the court to affirm that the Department has the authority to set a salary threshold under which employees would be automatically eligible for overtime pay for hours worked past 40 per week. Last year, U.S. District Judge Amos Mazzant put the pending rule on hold because he thought the department was focusing too much on workers' salaries and not job-duties when determining exempt and non-exempt employees. According to Labor Secretary Alexander Acosta, the judge also seemed to question whether the DOL can set any salary threshold. After requesting information on the rule from the Office of Management and Budget, it is clear the department is considering a change to the pending rule. Acosta has implied he would be open to supporting a slight raise in the salary threshold from about $24,000 to the low $30,000 range in order to account for inflation. |
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| Workplace Violence in Orlando |
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On June 5, 2017, John Robert Neumann, Jr. entered the rear door at Fiamma, a company that produces RV accessories, and proceeded to shoot and kill 5 employees before killing himself. Neumann was fired by Fiamma in April and was described as the "disgruntled employee" with a "negative relationship with at least one of the victims." According to reports, police had been called to the business in 2014 for another "workplace violence" incident in which Neumann allegedly battered a co-worker, but no charges were filed. In the days following the shooting, authorities released that the co-worker involved in the 2014 incident had filed for two protective orders against Neumann but withdrew them without explanation.
In her Domestic Violence in the Louisiana Workplace series, Rachael M. Coe discussed an employer's responsibility for an abuser's actions if those actions take place at the workplace in Part 3: Workplace Violence. While there is no indication that this was a domestic violence case, this article discusses the employer's responsibility to be aware of potential threats to the safety of employees.
Due to the limited details on the shooter's history with the company, including the reason for his firing, it is difficult to know whether Fiamma could be held liable in a wrongful death or OSHA general duty case.
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Withdrawal of Administrator's Interpretations on Joint Employment and Independent Contractors
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| The U.S. Secretary of Labor Alexander Acosta announced on June 7, 2017 that the Department of Labor's 2015 and 2016 informal guidance on joint employment and independent contractors would be withdrawn. This means that courts and federal agencies will no longer be able to rely on the Administration's guidance which took an expansive view of "joint employment" and made it easier to conclude that a "temp" worker and independent contractor is misclassified and should have been treated as an employee. |
| Uber Fires over 20 in Response to Company-Wide Investigation on Harassment and Discrimination Claims |
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| In early June, Uber Technologies, Inc. announced the firing of over 20 employees after a company-wide investigation into harassment and discrimination claims brought to light by Susan Fowler, a former Uber engineer who wrote on her blog that she was sexually harassed by her supervisor and the claims were ignored by human resources. Since the post, other employees reported systemic issues within the company culture and noting that if an employee showed strong performance and aggressive growth they were more likely to have any behavioral transgressions overlooked. 215 human resources claims were investigated. In 100 of those instances, no action was taken, but there are still probes into 57 of the claims. Uber informed the staff about the terminations in a staff meeting at its headquarters in San Francisco, CA. While the terminated employees were not named, it was disclosed by an employee who attended the meeting that some of them were senior executives. Those terminations were the result of an investigation carried out by the law firm of Perkins Coie. However, there is a separate investigation being conducted by former U.S. Attorney General Eric Holder that is expected to result in more big changes in the company. |
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Trump Administration Asks Federal Agencies to Remove Regulations That Pose as Obstacles to Apprenticeship Programs
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| On June 12, 2017 Labor Secretary Alexander Acosta presented a memo in the first full meeting of the Trump Administration Cabinet that suggested a review of regulations that could be obstacles to apprenticeship programs as part of the White House's effort to improve workforce development. Acosta's memo does not include examples of regulations that could impede the programs, but did recommend new executive actions to promote apprenticeships. Politicians from both sides of the aisle have recently been focusing on the benefit of apprenticeships and vocational education in push to raise the skill levels and incomes of workers without a college education. First Daughter Ivanka Trump has been vocal in her support of the program to help employers find trained workers to fill an estimated 6 million vacant jobs in the United States. Under President Obama, $175 million in apprenticeship grants were announced to help 34,000 Americans in the summer of 2016. |
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| Fourth Circuit Rejects "Mark of the Beast" Appeal |
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| A three-judge panel unanimously upheld a West Virginia federal jury's verdict that the U.S. EEOC finding that Consol Energy Inc. and its subsidiary Consolidation Coal Co. were liable for failing to accommodate an employee's religious beliefs in violation of Title VII. The employee, Beverly Butcher, claimed that scanning his hand to clock in and out of work signified the "mark of the beast" which denotes a follower of the Antichrist in the Bible's Book of Revelation. The Fourth Circuit said that Consol failed to recognize Butcher's religious conflict with the hand scanning policy because it felt his beliefs were mistaken. Butcher retired in protest after Consol refused to exempt him from using the hand scanner. The EEOC claimed that Butcher, and ordained evangelical Christian minister, was forced to quit because Consol would not accommodate his religious belief. Consol claimed in its appeal that the EEOC did not meet the standard to prove that the company had violated Title VII and argued there was no evidence that the hand scanning policy forced Butcher to quit. However, the Fourth Circuit sided with the lower court's decision and said there was enough evidence to conclude that Consol's refusal to exempt Butcher from the policy despite offering accommodations to workers who couldn't use the scanner for non-religious purposes. In their ruling, the Court pointed to the accommodation given to others that allowed them to key an identification number into a keypad. |
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| Private Plane Subscription Service JetSmarter Sued For Not Paying Overtime |
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| Florida startup JetSmarter, a service similar to Uber for private planes has been sued by former employee Grace Lamey and a group of other former employees for allegedly failing to pay thousands of hours of overtime. Lamey was a shuttle experience manager who was responsible for reservations, boarding and handing out food and drinks. The lawsuit alleges that Lamey and other employees regularly worked more than 65 hours a week and sometimes six or seven days a week and that they were not paid for those hours which is a violation of the Fair Labor Standards Act. Lamey left JetSmarter in March 2017. In May, a tech website received an anonymous tip that the company was unable to meet payroll expectations and failed to deliver paychecks to employees on time. In an email from human resources manager Andrea Wolniewitz acquired by the website and confirmed by a JetSmarter employee explained there would be a three-week gap in paychecks due to a change in payroll that would make future paychecks would be slightly smaller because more would be issued per year. In addition to the email, the website spoke with seven current and former employees who said that there had been times paychecks were not delivered on time, and some employees in the sales department claimed there had been issues around commissions and arbitrary changes in the percentage of payouts on sales or delaying of commission checks. According to JetSmarter CEO Sergey Petrossov, the allegations detailed in the lawsuit are "without merit" and described it as a "money grab" by a "disgruntled former employee." |
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Upcoming Management Update Briefings
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Breazeale, Sachse & Wilson, L.L.P. Labor & Employment Attorneys
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