In Our Judgement: In Law & In Life

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In Our Judgment

The official Frantz, McConnell, and Seymour, LLP blog.

Providing insight on developments in labor and employment law affecting East Tennessee employers and employees.

Are Employees Who Travel Away from Home Overnight Entitled to Travel Time Pay?

I was recently asked by a client to explain federal wage and hour regulations addressing work travel by non-exempt employees (employees who are paid based on an hourly wage rate and entitled to overtime pay).  In the course of this exercise, I quickly remembered how certain forms of travel can make the job of a payroll administrator very difficult.

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Your Employee Handbook and Work Rules Probably Violate Federal Law

Most employers and their legal counsel pay little attention to the actions of the National Labor Relation Board (NLRB). They assume that the NLRB only concerns itself with employers whose employees are members of a union. In many instances that is correct but in fact, the NLRB has jurisdiction over all private sector employers without regard to whether their workforce is unionized. From time to time, the NLRB steps away from resolving union election disputes and renders decisions that have very significant implications for all employers. That has been taking place for the past year regarding employer workplace rules and in particular, rules that seek to limit employee communications on social media.

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UPDATE ON RECENT NEWS: Federal Court in Texas Delays Implementation of New Definition of Spouse Under the FMLA in 4 States

Several weeks ago I reported on the United States Department of Labor's final rule amending the definition of "spouse" under the FMLA to specifically include spouses in same sex marriages; even for employees working in states that do not currently recognize such marriages. That change was to become effective March 27, 2015.

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New Definition of "Spouse" Under the FMLA Includes Spouses in Same Sex Marriages - Even in States That Do Not Recognize Such Marriages

The United States Department of Labor recently published a final rule that amends the definition of "spouse" under the Family and Medical Leave Act (FMLA) to specifically include spouses in same sex marriages. More significantly, however, the new rule provides that the legality of a marriage is to be determined by the law of the state in which the marriage was entered into (the place of celebration), not the state of residence. This definition change means that employers subject to the FMLA in the 16 states that currently do not recognize same sex marriages must nonetheless extend FMLA leave rights to eligible employees who request leave to care for same sex spouses, as long as the marriage was legal in the state where it was celebrated. This rule change takes effect on March 27, 2015.

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Misclassifying Employees As “Independent Contractors” Under Increasing Scrutiny

The United State Department of Labor (DOL) has partnered with almost 20 States to pursue employers that engage in misclassification of employees as independent contractors and collect unpaid overtime, payroll taxes, benefits and penalties that may be due. 

The financial incentive to treat persons who perform services as independent contractors is significant.  While employees are entitled to wage protections such as minimum wage and overtime pay, and in some cases leave protection such as FMLA, true independent contractors are not.  In addition, employers must pay State and federal payroll taxes, unemployment taxes and provide workers compensation coverage for employees, but not for independent contractors.  More recently, as the Affordable Care Act is implemented, certain employees classified as “full-time” under that statute are also to receive mandatory health care insurance coverage.

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