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DOL Issues FFCRA Regulations
No doubt you have heard that, on April 1st (that's right...April Fool's Day) the U.S. Department of Labor
announced
that it posted a temporary rule issuing new regulations for the Families First Coronavirus Response Act (FFCRA). The regulations took effect the same date. Employers have 30 days before full enforcement begins.
Feel free to join FiveL Company's
FREE
webcast on Wednesday, April 8th from noon - 1:30 EDT. The webcast will focus on the new regulations. This program is pre-approved by HRCI for 1.5 credits. SHRM pre-approval is pending.
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DOL Provides Fuzzy FLSA Answers
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Does your company have an employee referral bonus program? Consider this. Let's say you offer a $1,000 referral bonus: half when the new employee is hired, the other half if the new employee and the referring employee are both still on board one year later. Does the value of that referral bonus have to be included in a non-exempt employee's regular rate of pay for overtime calculations?
On March 26th, the Wage and Hour Division of the U.S. Department of Labor issued three new
opinion letters
. One letter (2020-4) gave a fuzzy answer to this question, a.k.a. "it depends." (Shocking, I know). The good news for employers is that the answer was, "No" with regard to the first half of the bonus. The answer was a qualified "maybe" with regard to the second half.
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FLSA Foible: One Word Makes All the Difference
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On March 26th, the U.S. Department of Labor (DOL) lent some clarity to its less-than-clear response to the other March 26th Opinion letter (described above). In this instance, an employer offered employees a longevity bonus. The policy read that employees "shall be entitled to receive an incentive award" if they had been with the employer for five or more years. This employer wanted to know if the value of this bonus had to be included in non-exempt employees' regular rate of pay for overtime calculations under the Fair Labor Standards Act (FLSA).
In short, the DOL said, "Yes."
Why
? Because of one word: "shall." The DOL explained that while the policy left the form and time of the payment to the employer's discretion, it did not give the employer discretion to deny the award to any qualifying employee. Payment was "required." It was not a gift. As a result, it must be included in the regular rate of pay.
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The issue of joint employment has been making the headlines lately.
- March 16th - The U.S. Department of Labor's (DOL) new regulation addressing joint employment under the Fair Labor Standards Act took effect.
- March 27th - The DOL published guidance on assessing joint employment as it relates to the FFCRA in its FAQ page (see Q #2 and #38).
- April 27th - The National Labor Relations Board's new joint employment rule will take effect (similar to and different from the DOL's rule).
Not to mention other implications under the ADA, ADEA, FMLA, OSHA, Title VII and more. How's
that
for some alphabet soup?! Don't feel like reading all 182 pages of these regulations?
If you missed FiveL's March webcast, "
Are You My Employer: Joint Employment and Non-Traditional Workers
" you can access the archived version ($25 pp). Pre-approved by HRCI & SHRM for 1.25 credits.
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Tepid Remarks Crank up the Heat
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A customer seems enthralled with an employee at a local retail store. He repeatedly asks her all sorts of personal questions, sneaks between isles to watch her and loiters in the parking lot to get a glimpse of her.
After the employer declines her request to park closer to the building, she takes a medical leave of absence...for a year. When the employer eventually terminates her employment, she sues.
The employer's defense against her hostile work environment (sexual harassment) claim was that the behavior was not sexual in nature, nor was it severe; his comments and behavior were tepid.
The court
agreed, but not in the way you might think.
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When Does Pregnancy Get Preferred Treatment?
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Earlier this year, the EEOC
announced
the settlement of three pregnancy discrimination lawsuits in less than a 30-day period.
Most employers understand their obligations under the Americans with Disabilities Act (ADA) to not discriminate and to provide reasonable accommodation to a qualified individual with a disability. What may be less clear is when the same or a similar obligation with regard to reasonable accommodation is owed to a pregnant employee or applicant.
For example, in light of COVID-19, some employers are receiving requests from pregnant employees to be excused from work for fear of contracting the virus and exposing their unborn child. On the flip side, employers are wondering if they should put pregnant employees off from work for the same reason. (FYI - the EEOC has provided answers!)
The rights of pregnant employees is being addressed at the state and local levels as well as under federal law.
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for more news impacting business and HR policies, programs and practices.
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In its 2nd Edition
!
A SHRMStore "
Great 8" Best-Seller
8 Years in a Row
!
Thank
YOU
!
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- Wednesday,April 8th, "COVID-19 Update for Employers: The FFCRA Regulations," FiveL webcast
- Friday, April 24th, FiveL's 14th Annual, "Employment Law, Legislative & Regulatory" (Virtual) seminar
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This publication does not constitute the rendering of legal advice. You should consult your company's legal counsel for guidance on any matter.
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