Nov 07, 2017
Here are the most read legal updates for employers from last month:
Nov 01, 2017
Everyone who keeps up with recent news has by now heard numerous stories about the sexual harassment claims against Harvey Weinstein. Other Hollywood figures have also been accused – some of more perhaps more serious harassment, such as the allegations that Kevin Spacey made sexual advances should an individual who was well under the age of consent.
With this news circulating, employers may face more allegations of workplace harassment due to heightened awareness. We recommend employers dust off their harassment policies and ensure they are up-to-date and well-publicized to employees. The following steps are essential to defend against an employee’s claim of workplace sexual harassment:
1. Adopt and publish the employer’s strong policy against workplace sexual harassment. Such a policy may also include a prohibition on other forms of unlawful harassment (including harassment based on age, religion, race, national origin, and other legally protected characteristics). Not having a written policy prohibiting workplace harassment, which may be included in an employee handbook or policy manual, will subject the employer to unnecessary risk and also will leave employees without a good resource or avenue to express concerns about harassment.
2. Include specific discipline to be issued for violations of the policy. The policy ideally will state the employer operates with a zero-tolerance policy, meaning that, in cases where the investigation establishes the harassment occurred, the violator will be discharged. Remember the general rule of industrial relations that the penalty should fit the crime. Where the allegations are similar to those against Harvey Weinstein, discharge is the appropriate penalty. In all cases, the message employees should receive is that the employer does not take such allegations lightly and will respond with significant discipline. Especially in cases involving physical touching or repeated conduct, the penalty should be discharge.
3. Managers and supervisors should be sure to clearly endorse the policy and avoid any suggestion that there is less than total support for every part of the policy. Any suggestion that the policy is meaningless or is not enforced or that it is “selectively enforced” based on who the violator is may result in liability should an employee bring a harassment claim.
4. In employee meetings, at least annually, the policy should be discussed, and employees should be reminded of the policy and its contents. A best practice is to have employee training regularly that emphasizes the contents of the policy, provides examples of workplace harassment, and advises employees to immediately report any concerns to Human Resources. Having a policy that is disseminated, and having employees trained regularly on the reporting procedure, can help an employer’s defense of a harassment claim if the employee does not use the reporting procedure.
5. Ensure that investigators (generally Human Resources professionals) conduct thorough and fair investigations into allegations of unlawful harassment. Each investigation should be well-documented and the information kept as confidential as possible. Every witness named by both the complainant and the accused should be interviewed. Care should be taken to conduct the investigation promptly but not at the expense of thoroughness.
6. Make sure the policy has a non-retaliation provision and follow it. One of the most precarious legal situations an employer can face is one in which an employee has made a claim of harassment and that employee is discharged within a short time period after the complaint is made. Regardless of whether the employee was on thin ice due to performance or attendance issues prior to making the complaint, the timing of any discipline after a harassment complaint is very significant. Employers should ensure proper steps are taken to protect any employee from retaliation for complaining of harassment and/or participating in a harassment investigation, as a witness or otherwise.
7. Never advise the complainant that he/she must keep the complaint “confidential.” As a general rule, non-supervisory employees have a right to discuss terms and conditions of employment under the National Labor Relations Act and discussing a complaint of harassment with co-workers would be protected under the NLRA. However, the investigators should keep the information obtained during the investigation as confidential as possible.
There are no steps that stop harassment from ever occurring in the workplace, but following the guidelines above will help avoid harassment in the workplace. Should incidents occur, the guidelines are vital for a strong defense by showing the employer had a well publicized policy and reporting procedure and that the employer takes such claims seriously and takes prompt, appropriate remedial action when a complaint is made.
If you have any questions regarding the harassment policies or would like us to review and update your policy, please contact any of the lawyers on Lowenbaum Law’s employment law team, including Whitney Cooney, Karen Milner, or Jamie Westbrook.
Oct 24, 2017
Jun 14, 2017
How to manage ‘Weed At Work?’ Listen here as Lowenbaum Law’s Michael Lowenbaum and Brian Bauer from H&H Health reveal everything employers need to know – on FM NewsTalk 97.1
Top 5 pitfalls when administering the Family & Medical Leave Act
Lowenbaum Law was proud to sponsor the 4th Annual Golf FORE! Ellie fundraiser for the Rett Spectrum Clinic at St. Louis Children’s Hospital.
Lowenbaum Law was voted one of the “Best Law Firms 2017” in St. Louis by St. Louis Small Business Monthly. Thank you to our clients for all of your support!
May 09, 2017
Here are the top legal updates for employers from last month:
Webinar: How to avoid the five most common pitfalls when administering the Family & Medical Leave Act. Register now for the May 17 webinar.
Marijuana in the workplace: seeing through the smoke in a changing landscape of legislation. Michael Lowenbaum to present at the May 12 event at 8 a.m. at the Drury Inn & Suites, Brentwood. RSVP to ChrisK@HHHealthAssociates.com.
Leading immigration attorney Diane Metzger, of Lowenbaum Law, was named one of the ‘Top 100 People to Know in St. Louis to Succeed’.
Jan 23, 2017
As of Jan. 22, 2017, all employers must use a new version of the Form I-9, Employment Eligibility Verification form, for all new hires and Section 3 reverifications. The new version was published on Nov. 14. Failure to use the new version of the Form I-9 carries stiff monetary penalties, starting at $216 per I-9 violation.
The revised Form I-9 is more technology-friendly, as it includes new drop-down fields, system prompts, calendars for populating dates, and on-screen instructions to guide the user if completing the form on the computer (which is not mandatory). The new form also revised certain fields in order to clarify requests for information (such as “other last names used” as opposed to “other names used”), and now includes an addendum page for additional preparer/translator certifications if more than one preparer or translator assists with the completion of the form.
The most notable changes to the new Form I-9 can be seen in the new form’s instructions, which have ballooned from 9 pages to a whopping 15 pages. The expanded instructions provide a much more comprehensive explanation about how to properly complete each field of the form, the acceptable abbreviations for List A, B, and C documents, and the new instructions also provide additional information regarding potential citizenship and national origin discrimination claims.
Other notable changes include an “additional information” box where employers can write additional notes regarding the I-9 verification process. Previously, employers had no designated area in which to provide such notes, and were left to randomly scribble such notes in open areas in the margins of the form.
As with any new government form however, there are pitfalls which await the unwary practitioner. Therefore, it is imperative that employees and agents completing the new Form I-9 on behalf of your company are familiar with the Form I-9 requirements in order to avoid potential monetary and criminal liability.
If you have any questions regarding the new Form I-9 or any other immigration matter, please do not hesitate to contact Diane E. Metzger.
Nov 23, 2016
Employers have been granted a surprise reprieve from the onerous overtime regulations promulgated by the federal Department of Labor (DOL) scheduled for implementation on Dec. 1, 2016. Yesterday, a federal judge in Texas issued a nation-wide injunction against implementation of the new regulations. This action represents an historic victory for employers but also creates a serious conundrum for many companies who have already taken steps to comply with the new regulations.
The final new regulations created a firestorm of controversy because they would have increased the “salary level” for the so-called “white collar” exemptions from the overtime requirements of the Fair Labor Standards Act (FLSA) to $47,476 annually. This increase more than doubles the current salary level and has caused many employers to significantly raise the salaries of employees for whom an exemption was claimed. The impact was particularly acute for employees falling under the executive (supervisory) exemption but also impacted employees classified as exempt “administrative” employees. In addition to triggering a wholesale increase in pay for exempt employees, the new regulations prompted many employers to reassess, and in many cases, restructure their supervisory and administrative staffs.
In enjoining the implementation of the new regulations the federal judge concluded that the DOL was not privileged to impose a salary test at all for the exemptions, but instead was statutorily required to focus exclusively on the work performed by the putative exempt employee. The judge’s decision is preliminary; and the injunction remains in effect only until a hearing on a permanent injunction can be conducted. We cannot predict with confidence the ultimate outcome of this lawsuit; or how long this injunction may remain effective.
This surprise, but welcome decision, creates a dilemma for employers. Those employers who have already made salary adjustments and/or operational changes to comport with the new regulations, must decide whether to announce they are rescinding the raises and unwinding the operational changes; or maintaining the new status quo and await further developments. Those that have not yet implemented changes have available an additional alternative to merely suspend implementation and wait to see what happens next. Clearly, any precipitous action to rescind salary increases or postpone planned restructuring could have a deleterious impact on morale. However, rescinding scheduled raises could also ameliorate some of the more draconian aspects of the new regulations.
We urge all employers who have contemplated or already taken action to comply with the new regulations to immediately contact the experienced Wage and Hour attorneys at Lowenbaum Law so we can address these issues and work through the best solution for your business.
Sep 01, 2016
Two laws recently enacted by the Illinois legislature affect most Illinois employers. These include:
The Child Bereavement Leave Act
This Act took effect July 29, 2016 and applies to all employers covered by the Family and Medical Leave Act (FMLA). This type of leave is only available to employees who fall under the definition of an “eligible employee” under the FMLA. An employee who does not meet FMLA eligibility requirements is not eligible for Child Bereavement leave.
If an eligible employee has not exhausted all available FMLA leave and has a child who dies, the employee may take off up to a maximum of two weeks (10 working days) to:
“Child” includes the employee’s son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. The bereavement leave need not be paid, and must be taken within 60 days of the date the employee receives notification of the child’s death. The employee must provide the employer with at least 48 hours’ advance notice of the employee’s intent to take bereavement leave, unless providing such notice is not reasonable and practicable.
In the event of the death of more than one child in a 12-month period, an employee is entitled to take up to a total of 6 weeks of bereavement leave during the 12-month period.
Please note that Child Bereavement leave is not available if the employee has already exhausted all of his or her FMLA leave. Further, the employer has the right to require the employee to provide reasonable documentation to verify the need for leave, such as a death certificate, a published obituary, or a note from the funeral home.
The Employee Sick Leave Act
The Illinois Employee Sick Leave Act takes effect on Jan. 1, 2017.
The Act provides that employees may use “personal sick leave benefits” provided by an employer for absences due to an illness, injury, or medical appointment of the employee’s child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent for reasonable periods of time as the employee’s attendance is necessary, on the same terms and conditions upon which the employee is able to use sick leave benefits for the employee’s own illness or injury.
The Act defines “personal sick leave benefits” as “time accrued and available to an employee to be used as a result of absence from work due to personal illness, injury, or medical appointment.” The term does not include “absences from work for which compensation is provided through an employer’s plan” which, according to the legislative history, appears to mean the employer’s short-term or long-term disability plans.
The Act allows an employer to limit the employee’s use of sick leave for one of the relatives described above to an amount not less than the personal sick leave amount that would have accrued during a six-month period at the employee’s then-current rate of entitlement. If an employee has more than six months’ worth of sick leave benefits available, the employer may cap the amount the employee can use for a family member’s illness, injury, or medical appointments to the amount of sick leave the employee earned over a six-month period.
The Act does not increase any rights an employee has under the FMLA and contains a non-retaliation provision prohibiting an employer from denying personal sick leave benefits in accordance with the Act and prohibits any act of retaliation (such as discharge, demotion, suspension, or any other form of discrimination) against an employee for using personal sick leave benefits as provided for in the Act.
If you have any questions about these Acts or any other employment matter, please feel free to contact Karen Milner, Chris Sanders, Corey Franklin, Whitney Cooney, or Jamie M. Westbrook.
Jun 16, 2016
With its new “persuader rules” scheduled to become effective July 1, 2016, the Department of Labor (DOL) is feeling the heat of withering criticism. In response to lawsuits challenging aspects of the new rule filed by a number of state attorney generals, employers, management-side labor law firms, employer associations (such as the U.S. Chamber of Commerce), and the American Bar Association), the DOL has been forced to define a significant “loophole” in enforcement of the new persuader rules. This significant loophole commands the immediate attention of all existing clients.
In brief, the new persuader rules will require employers and law firms to publicly disclose through filings with the DOL any arrangements to even indirectly persuade employees concerning the right to organize and bargain collectively. Effectively, the rules require employers to report all monies expended for the purpose of resisting union organizing not only for actual direction of union avoidance campaigns, but also peripheral activities such as conducting union avoidance training for managers and supervisors. The rules also extend a concomitant reporting obligation to the attorneys who perform this work for the employer.
The broad definition of persuader activities fashioned by the DOL will create a monumental headache for employers and will provide the unions with fodder for their organizing campaigns. The rules have the potential to fundamentally alter the relationship between attorneys and their clients in the realm of union avoidance and seriously circumscribe the role attorneys can fill in orchestrating successful resistance to union organizing.
It is important for all employers to take immediate action to forestall the adverse consequences of the new rules. The DOL has now publicly affirmed the rules will only apply to attorney/client engagements entered into on or after July 1, 2016, even if the work contemplated by the engagement will be performed in the future (if at all). This means an employer that engages their lawyers prospectively to represent them in union avoidance matters may escape the obligation to publicly report persuader activities, even if these activities are undertaken after July 1.
We will be distributing supplemental engagement letters for clients impacted by these rules. We strongly urge all clients to act immediately upon receipt of the supplemental engagement letters to execute and return the letter to us. If your company is not presently a client, and are interested in engaging our firm to provide legal advice on labor relations and union avoidance matters, please contact R. Michael Lowenbaum, Corey L. Franklin, Robert S. Seigel, David P. Frenzia, D. Michael Linihan, or any other labor law attorney to discuss this matter more comprehensively. As always, we are happy to discuss any questions or concerns you may have concerning the purpose or content of the letters.
May 18, 2016
Today, the U.S. Department of Labor (DOL) formally issued the final regulations that will increase the required salary an employee must receive to qualify for exempt status under the professional, executive, administrative, and computer exemptions. The new regulations also increase the required salary to qualify for the highly compensated employee (HCE) exemption. The Final Rule has been issued and is scheduled to be published in the Federal Register on Monday, May 23, 2016.
The good news is that these increased salary requirements do not take effect until Dec. 1, 2016. Key Provisions of the Final Rule include:
If you have any questions about these changes or any other wage and hour matter, please do not hesitate to contact Karen E. Milner, R. Michael Lowenbaum, Robert S. Seigel, Corey L. Franklin, Christopher M. Sanders, David P. Frenzia, Whitney P. Cooney, or Jamie M. Westbrook.