HR News You Can Use: DOL & FLSA; ADA, ADEA, FMLA, Form I-9...

Volume 19 | December 2020

HR & the Law in the News

Bringing You More News Stories in a Shorter Format!

2021 Webcast Series Subscriptions Now Available.

To Pay or Not to Pay #1: Training & Travel Time

In this space last month was an article about whether and when rest and meal periods must be paid. This month, it's two new subjects.

On November 3rd, the U.S. Department of Labor (DOL) issued two new opinion letters. One was about when a non-exempt employee's travel time must be paid. The other addressed when an employee's voluntary attendance in web-based training must be paid. For example:

Q: Is the time an employee spends voluntarily watching a webinar during the employee’s regular working hours that is not related to his or her job considered time worked, which must be paid?

Q:If an employer offers transportation from the employer’s place of business to a local work site and a non-exempt employee chooses to drive him or herself, does the employee’s travel time count as time worked?

Click here for the DOL's answers to these questions and more! Then scroll to the last article for story #2!

Beware the Last Straw!

In a recent case, an employer lost its defense against an employee’s claim of age discrimination. The employer gave the employee the chance to resign or be fired after they received a complaint from a second woman, alleging he propositioned her. His work performance was not stellar either.

The court ran through a work history that was replete with performance and conduct issues: offending coworkers and clients, not meeting sales goals, and more. At the end, the court found the employer, "certainly had many reasons to find fault with [the employee’s] performance and professionalism..."

So, why did the court find in the employee's favor when he alleged that he was fired because of his age?

Click here to learn what the court said.

ADA & Reasonable Accommodation: Courts Confused?

You have three employees in the same job classification. They all have the same minimum productivity standard. One of the three is an employee with a disability. He asks for a reasonable accommodation to help him meet that standard. You decline his request. You also tell him, "That's OK." You tell him he can meet a lower productivity standard and will incur no corrective action.

Did you violate the ADA when you refused the employee's request for a reasonable accommodation? Or does the employee need to show some (other) adverse employment action as a result of that refusal?

Click here for the court's 7-6 answer!

You Know What Happens When We Assume!

An employee requests a specific hearing protection device as a reasonable accommodation. The employer declines because the device does not meet specific rating noise-reduction ratings required by federal regulations. The employer’s Director of Disability Management asked others to look for other remedial devices. When none were found, the employee was fired. The employee then sued, alleging the employer failed to provide a reasonable accommodation.

Who won? Click here for the answer and what assumption was made!

Wait for it...Wait...Voila! Form I-9 Flex Rule Extended 5th Time!

On November 18th, U.S. Department of Homeland Security (DHS) announced it was extending the Form I-9 Flexibility Rule for the 5th time since it was first announced in March 2020.

DHS has also provided examples for conducting remotely inspecting related documents and conducting subsequent physical inspections.

Click here for more information and links.

To Pay or Not to Pay #2:

FMLA, E-FMLEA & Holiday Pay?

This year brings a new twist to the annual flurry of questions about if and when an employee who is out on FMLA leave is/not paid for the holiday. The answer depends upon whether the employee is using the leave for the entire week in which the holiday falls or intermittently.

Now, add the same question as it relates to the use of leave under the Emergency Family and Medical Leave Expansion Act (EFMLEA). Do the same rules apply? Why or why not?