Eighth Circuit affirms working overtime can be essential job function

Overtime work is essential in many industries. As a result, employers frequently structure job roles to require mandatory overtime. Although mandatory overtime can present difficult questions when an employee has a disability that disqualifies them from working overtime, the Eighth Circuit Court of Appeals, in McNeil v. Union Pac. R.R., No. 18-2333, recently confirmed that overtime work can be an essential function of a job in appropriate circumstances.

In McNeil, the Eighth Circuit evaluated whether Union Pacific could lawfully terminate a disabled emergency dispatcher who could no longer perform the mandatory overtime required of all Union Pacific emergency dispatchers. The plaintiff brought suit against Union Pacific following her termination and alleged disability discrimination under federal and state law. In the district court, Union Pacific moved for summary judgment arguing that the plaintiff was not a qualified individual with a disability because she was unable to perform an essential function of the position due to her inability to work overtime. The district court agreed, and granted Union Pacific’s motion.

On appeal, the Eighth Circuit affirmed the district court’s decision that the plaintiff’s ability for overtime work was an essential function of her job as a dispatcher. In doing so, the Eighth Circuit emphasized the authority of an employer to establish the essential functions of a job. To defeat a “failure to accommodate” discrimination claim, an employer must prove that the function at issue is, indeed, essential. Notably, the district court in McNeil relied on the company’s clear scheduling and attendance policies, which expressly articulated that overtime work is “mandatory.” The McNeil court also highlighted the public safety concern of always having a capable dispatcher ready and on duty. If plaintiff were permitted to avoid working overtime on an ongoing basis, then that burden would fall on another dispatcher to absorb. Such a situation, the court reasoned, could create a public safety risk.

Macron scale of damages for unfair dismissal: the lower French industrial tribunals strike back

By S̩everine Martel and Fernando Teixeira on 16 September 2019 Posted in Dismissals, Employment (France), France Workplace Laws and Regulations

In two decisions both rendered on 17 July 2019, the French Supreme Court ruled that the Macron scale (a mechanism introduced on 24 September 2017 to provide for caps and floors on damages for unfair dismissal) complies with international conventions ratified by the French government. These decisions were rendered through a specific procedure (demande d’avis) in which the French Supreme Court does not judge a case but is invited to take a legal position on a specific issue in order to harmonize legal practice.

These decisions should have ended the dissension of several French industrial tribunals which had set aside the Macron scale, considering it to be in breach of article 10 of the Termination of Employment Convention of the International Labor Organization and article 24 of the European Social Charter, both of which provide for adequate protection and appropriate compensation in the event of unfair dismissal. Continue Reading

Fall to bring more than just foliage for New York employers

By Cindy Schmitt Minniti, Mark S. Goldstein and Alexandra Manfredi on 12 September 2019 Posted in Discrimination, Employment & Labor (U.S.), Equal Pay, New York Employment Beat, Sexual Harassment, Sick leave, Workplace Laws and Regulations

New York lawmakers had a busy summer overhauling many of the state’s existing workplace laws. Many of the newly enacted changes, as well as others enacted within the past year, become effective in October 2019. Below we will highlight the new laws taking effect in October and discuss measures employers should take to ensure their workplaces are compliant.

Already in effect:

All New York State employers must provide new hires with a notice containing the company’s sexual harassment policy. In addition, at the required annual sexual harassment prevention training sessions, employers must again furnish to all employees a notice containing the sexual harassment policy and, also, the information presented at the training.

While the law does not indicate precisely what information presented during the training must be provided, we recommend that employers provide new hires with the handouts and a copy of the presentation (presumably, PowerPoint slides) used at the training program.

22 years is long enough – German Federal Labour Court rules that fixed-term employment contracts without material reason are permissible

By Jan Weißgerber and Andrea Manger on 12 September 2019 Posted in Contracts, Employment (Germany), Workplace Laws and Regulations

In general, the conclusion of a fixed-term employment contract is permissible if it is justified by a material reason (section 14(1) of the German Act on Part-time and Temporary Work (Teilzeit– und Befristungsgesetz – TzBfG)). Term limitations without a material reason are only permitted for a maximum period of two years (section 14(2)1 of the TzBfG). However, the conclusion of a fixed-term employment contract without material reason is prohibited if the individual concerned had previously been employed on a fixed-term or permanent basis by the same employer (section 14(2)2 of the TzBfG).

In its prior case law (from 2011 onwards) the German Federal Labour Court (Bundesarbeitsgericht) interpreted section 14(2)2 of the TzBfG to mean that a new fixed-term contract without material reason would only be prohibited under section 14(2)2 of the TzBfG if the employee had been employed within the last three years prior to the intended fixed term.

California leads the way in passing landmark legislation to classify gig workers as employees

By Anne Cherry Barnett, Michele Haydel Gehrke and Heather Martone on 11 September 2019 Posted in California Employment Beat, Employment, Employment & Labor (U.S.), US Alert, Wage and Hour, Workplace Laws and Regulations

As we have previously reported here, California Assembly Bill 5 (the bill) is slated to codify the California Supreme Court’s 2018 landmark decision in Dynamex Operations West v. Superior Court of Los Angeles, requiring companies to apply the “ABC” test in classifying their workers. The ABC test requires that workers be considered “employees” instead of “independent contractors” if their work is part of the employer’s regular business, or if the employer exercises control over how its workers complete their jobs.

Yesterday, the California Senate approved the bill as currently drafted and returned it to the State Assembly, as a matter of formality, where it is expected to be approved. The bill received much opposition from various gig-economy companies despite Governor Gavin Newsom’s endorsement. Once the Assembly passes the bill, Governor Newsom is expected to sign it into law, with an effective date of January 1, 2020. The bill will apply to many workers previously classified as independent contractors, and will apply to app-based companies operating in the gig-economy space, which will notably transform the gig economy in California.

In recent months, the bill was amended to include various carveouts for approximately 50 industries, including salon workers, insurance agents, doctors, lawyers, accountants, and securities brokers.

Notably absent from the current form of the bill is an exclusion for gig-economy workers. App-based companies have traditionally operated on a business model that touts the flexibility of the independent contractor model, which has been embraced by many gig workers, notwithstanding the lack of legal protections afforded to employees in the areas of earnings and benefits. However, if the bill is signed into law in its current form, gig-economy workers will be considered employees entitled to labor protections, which will likely increase the amount of wages and benefits such workers currently earn.

It is anticipated that the bill will have far-reaching consequences in California, affecting approximately 1 million workers previously classified as independent contractors and companies whose business models are based on utilizing independent contractors, who tend to be less expensive than employees. Once the bill is signed into law, most workers will likely need to be classified as employees entitled to minimum wage, overtime, and unemployment benefits. These newly classified employees may also gain the right to join a labor union. Continue Reading

Is extreme obesity a physical characteristic or a disability?

By Christopher Bouriat and Jay Glunt on 11 September 2019 Posted in Employment, Employment & Labor (U.S.), Workplace Laws and Regulations

Imagine you are a human resources professional or in-house employment counsel and you learn that an employee in your organization is seeking a job transfer or other accommodation because with a body weight of almost 600 pounds, he is too overweight to do his present job. What do you do?

A recent decision from the U.S. Court of Appeals for the Seventh Circuit highlights how courts across the country have interpreted the Americans with Disabilities Act (ADA) in workplace situations involving obesity. If a workplace challenge relating to obesity hasn’t happened in your organization yet, it is increasingly likely to happen soon. The Journal of the American Medical Association reports that rates of American adults with obesity have continued to increase over the past decade according to researchers from the Centers for Disease Control and Prevention (CDC). Their findings comport with a trend line dating back to the 1980s. With that trend in mind, let’s examine Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019).

Mark Richardson worked as a bus driver for 13 years. In September of 2010, weighing nearly 600 pounds, Richardson’s employer required that he undergo a safety assessment following a medical leave. During the assessment, he was unable to perform several safety driving functions (for example, hand-over-hand steering) because of his obesity. Richardson argued under the ADA and related agency regulations and guidance that severe obesity should automatically qualify as an ADA impairment, without having to show any other underlying physiological cause.

New York bolsters workplace safeguards for domestic violence victims

By Cindy Schmitt Minniti, Mark S. Goldstein and Alexandra Manfredi on 9 September 2019 Posted in Employment, Employment & Labor (U.S.), New York Employment Beat, US Alert, Workplace Laws and Regulations

Following New York City’s lead, New York state and Westchester County have each enacted laws providing additional workplace protections to victims of domestic violence. In this post, we will discuss these new laws and their impact on your business.

New York state:

Last month, Governor Cuomo signed legislation amending the state’s antidiscrimination laws with respect to victims of domestic violence. The new law, which goes into effect on November 18, 2019, prohibits employers from engaging in the following discriminatory activities:

Refusing to hire or employ someone because they are a victim of domestic violence;
Terminating someone because they are a victim of domestic violence;
Discriminating against a victim of domestic violence with respect to compensation or the terms and conditions of their employment;
Printing or circulating a statement, advertisement, or publication that expresses any limitation, specification, or discrimination as to status as a victim of domestic violence; or
Using an employment application or making an inquiry in connection with prospective employment that expresses any limitation, specification, or discrimination as to status as a victim of domestic violence.

Under this law, employers must also provide accommodations to employees who are victims of domestic violence under certain circumstances – when they must be absent from work to seek medical treatment, obtain counseling, obtain legal services or appear in court, or participate in safety planning – unless such accommodations would pose an “undue hardship” on the employer.

Employees are required to provide reasonable notice of their absence. If such advance notice is not feasible, an employer may request that the employee provide verification of the basis for the absence. Employers may require employees to use PTO or vacation time for such absences and, if such time is unavailable, may treat the accommodation as unpaid time off.

Westchester County:

In April 2019, Westchester County enacted legislation requiring employers to provide up to 40 hours of paid safe time leave to employees who are victims of domestic violence or human trafficking. Under the new law, which goes into effect on October 30, 2019, employees will be permitted to take paid safe leave to attend or testify at legal proceedings or relocate to a safe location.

Westchester employers will be required to provide paid safe leave in addition to sick leave under the county’s Earned Sick Leave Law. To be eligible for paid safe leave, an employee must have worked in the county for more than 90 days in a calendar year. Employers will be required to provide a copy of the law and a written notice explaining the law upon an employee’s hire or by January 28, 2020. Employers will also be required to conspicuously display a copy of the law and a poster in English and Spanish on their premises.

Fifth Circuit approves day rates for some highly compensated employees

By Michael Correll, Mark Temple and Rachel Machisak on 30 August 2019 Posted in Employment & Labor (U.S.), Texas Employment Beat, Wage and Hour, Workplace Laws and Regulations

The Fifth Circuit Court of Appeals issued an opinion last week holding for the first time that a “day rate” in excess of $455 paid to a highly compensated employee meets the requirements of the “salary basis” test under the Fair Labor Standards Act (FLSA).

Specifically, in Faludi v. U.S. Shale Solutions, No. 17-20808, 2019 WL 3940878 (5th Cir. Aug. 21, 2019), the plaintiff, a consultant, brought suit alleging that his former client and employer^[1] owed him overtime under the FLSA because the plaintiff had not been paid on a salary basis. Instead, the plaintiff received $1,000 per day for any day on which he performed any amount of work in Houston and $1,350 per day for any day in which he performed any amount of work outside of Houston. However, under the plaintiff’s arrangement with the defendant-employer, if he worked more than 40 hours in a week, he did not receive any overtime premiums. In the district court, the defendant-employer argued, and the district court found, that the plaintiff’s claims failed as a matter of law because he fell within the FLSA’s “highly compensated employee” exemption.

On appeal, the plaintiff argued that he did not qualify for the “highly compensated employee” exemption because the day rate payment system used by his employer did not satisfy the “salary basis” test. In support of his claim, the plaintiff argued: (1) the day rate system did not calculate pay “on a weekly, or less frequent basis” in violation of 29 C.F.R. § 541.602(a); (2) the plaintiff voluntarily reduced some of his day rate payments on invoices he submitted to the defendant-employer for days that he performed less than a full day’s work; and (3) the day rate system did not satisfy the “reasonable relationship” test articulated in 29 C.F.R. § 541.604(b). Continue Reading

On the eve of Labor Day, a win for business from the NLRB

By Lori Armstrong Halber, Jay Glunt and Chalyn Kaufman on 30 August 2019 Posted in Employment & Labor (U.S.), Labor (U.S.), Wage and Hour, Workplace Laws and Regulations

Today more than ever, U.S. businesses supplement their workforce with independent contractors as a solution to competitive and customer pressures. The use of contractors is entirely legal. But the correct classification of workers as contractors, as opposed to employees, is a complex analysis with frameworks that differ across a variety of governing laws. Employers, therefore, sometimes get this wrong. Recognizing the likelihood that workers are sometimes misclassified as contractors, on August 29, 2019, the National Labor Relations Board (the NLRB or Board) issued an important opinion for businesses when it held that misclassification of employees as contractors is not a violation of federal labor law.

NLRB pro-business opinion

Velox Express, Inc. is in the medical courier business. It supplements its driver workforce with independent contractors. Velox terminated its contract with one such driver, Jeannie Edge, when Edge began voicing concerns on behalf of herself and other drivers that Velox had misclassified them as contractors instead of employees. Edge filed an unfair labor practice charge claiming that the driver misclassifications violated the National Labor Relations Act (the Act). The administrative law judge agreed. In Velox Express, Inc. and Jeannie Edge, the Board, which has a three-member Republican majority, affirmed the judge’s ruling that Velox misclassified Edge and other drivers as independent contractors under the Act, but held that the misclassification, in and of itself, did not violate the Act. 368 NLRB No. 61.

Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees” from exercising their legal right to engage in protected concerted activity under the Act. The Board explained that an employer’s mistaken classification of employees as independent contractors does not interfere with or threaten any workers’ right to engage in protected activity under the Act, even if independent contractors cannot join a union. Id. at 6. The Board’s rationale was that when workers are classified as independent contractors, they still retain the right to disagree with their classification and engage in protected activity, which is exactly what Edge did. The employer violates the Act only if it responds to the protected activities with threats, promises, and interrogations. Id. at 6. The Board held that “[e]rroneously communicating to workers that they are independent contractors does not, in and of itself, contain any threat of reprisal or force or promise of benefit.” Id. Continue Reading

Covert recordings at work on the rise in the UK

By Amy Treppass and Michael D. Smith on 19 August 2019 Posted in Employment (UK), Employment Tribunals, Workplace Laws and Regulations

It is becoming increasingly common for employees to make covert recordings of meetings held with their employer. The reasons behind these recordings vary from a simple desire to keep a record of what is said to attempts to entrap their employer and use the recording against it in court proceedings.

The Employment Appeal Tribunal (EAT) recently considered the issue of covert recordings in Phoenix House Ltd v. Stockman. The EAT had to decide whether an employee’s covert recording breached the implied term of mutual trust and confidence. In its decision, the EAT provided helpful commentary on covert recordings which may assist employers to navigate this difficult area.