Federal appellate court draws the line for an extended leave of absence, but there are still no easy answers
Published on Fri, 10/06/2017 - 10:58pm
A recent Federal Court of Appeals decision serves as a reminder of the legal complexity and uncertainty that employers face in administering medical leaves of absence as a reasonable accommodation. In Severson v. Heartland Woodcraft, Inc., the Seventh Circuit affirmed the lower court’s ruling that an employer did not violate the Americans with Disabilities Act by not granting an employee a medical leave of absence that exceeded his FMLA leave period by two to three months.
In the retail sales environment, holidays are often the busiest and most profitable times and such businesses must schedule adequate staffing. But are employers legally obligated to provide any particular paid holidays off for employees? Car dealerships often offer paid holidays for employees whose departments are closed on the major holidays, and even sales department employees often have paid holidays on Thanksgiving and Christmas. The common practice of offering some level of paid holiday benefits can create the expectation or impression that paid holidays are a legal obligation.
Last year, there was much publicity and concern arising from the Department of Labor’s new minimum salary levels for employees to qualify for the white collar exemptions from minimum wage and overtime pay under the Fair Labor Standards Act. These new minimum salary levels would have dramatically increased from $23,000 to $47, 476 per year, and included automatic upward adjustments over time. However, a Texas court has stepped in to invalidate these changes.
We previously published information on the Equal Employment Opportunity Commission’s new reporting requirements for which employers with 100 or more employees would be required include compensation data in their annual EE0-1 reports commencing on March 31, 2018 for 2017 data. These new EEO-1 reports include information regarding total compensation and hours worked by race, ethnicity and gender, EEO-1 category and salary ranges.
In July, the U.S. Customs and Immigration Service issued a new Form I-9 for documenting eligibility to work in the U.S. For the time being, employers could use either the new form or the existing I-9 Form (which has a revision date of November 14, 2006). But commencing September 18 2017, employers must start using the revised form, which contains a revision date of 07/17/17.
The Scali Law Firm announced today that Halbert “Bert” Rasmussen has joined the firm as a partner in the Los Angeles office. Rasmussen, previously a partner at Arent Fox, LLP, is highly regarded for the breadth and depth of his industry knowledge and experience in representing major players in car, truck, bus, and motorcycle sales, finance, and technology. “Bert’s addition represents a milestone in the expansion of the firm’s practice, which now includes thirteen lawyers in 5 offices,” said Christian Scali, principal of the Scali Law Firm.
There are ongoing indications that the Department of Labor under the Trump administration will continue to roll back Obama-era initiatives. The latest pertains to the controversial Union Persuader rule that we reported on last year. That new rule would have required employers to disclose information regarding their retention of consultants and attorneys to persuade employees to not unionize. The proposed Union Persuader rule never took effect and its enforcement was delayed while it was challenged in the courts and enjoined nationwide late last year. Now, the Department of Labor has published a Notice of Proposed Rulemaking that proposes to rescind this rule. The Department of Labor also withdrew the informal guidance it previously issued in 2015 and 2016 on independent contractors and joint employment.
In the course of assisting employers with compliance-related matters, we frequently encounter issues of concern where employers require or expect employees to use their personal mobile devices for work-related matters. In the customer service-intensive environment of a car dealership, employees are expected to be readily available to customers, and it is the norm for salespersons and service advisors to provide customers with their personal cell phone numbers for ready access. However, where the employee is required or expected to use his/her personal device to perform work duties, the employer is obligated under California law to reimburse the employee for any costs associated with such use.
As we reported previously in Coffee Break, employers have a new notification obligation regarding the rights of employees who are domestic violence victims, and now the contents of the required notice has been made available.
The Fair Employment and Housing Commission has issued new regulations for California employers regarding criminal history inquiries that took effect July 1, 2017. These regulations have many similarities with prior guidance issued by the federal Equal Employment Opportunity Commission on the same subject. The new rules do not prohibit employers from considering criminal information altogether but mandate a process for employers to follow in using such information in an employment decision.