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.
In Our Judgment
Providing insight on developments in labor and employment law affecting East Tennessee employers and employees.
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.
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.
We all know that the Occupational Health and Safety Administration (OSHA) issues and enforces workplace safety and health standards.
We expect to see OSHA involved in setting and enforcing safety standards in industrial and construction settings where workplace accidents unfortunately are more prevalent. While OSHA is certainly active in heavily industrialized work settings, the Occupational Safety and Health Act of 1970 ("the Act") pertains to all employment settings and requires that all employers provide their employees with a safe workplace free from known dangers. Even if there is no specific OSHA standard applicable to a particular employment practice, the Act contains a "general duty" clause which provides that all employers have a general duty to provide a safe workplace.
In the last few weeks I have discussed recent developments in Tennessee and federal employment laws which will either take effect on January 1, 2015, or which may soon change some employment practices in Tennessee.
One very positive recent development was the Tennessee legislature’s passage of legislation which provides a mechanism for employers to give “second chance” opportunities for meaningful employment to individuals who have criminal convictions in their past. I have often observed that a number of employers and hiring managers believe in providing these second chance opportunities when possible. Unfortunately, until now, hiring managers must weigh the desire to extend a helping hand with the risk that hiring someone with a known criminal history, no matter how distant, could provide fodder for a claim of negligent hiring in the event the employee is later alleged to have engaged in some criminal, intentional, or other inappropriate conduct. For that reason, many employers simply determine the safest course of action is to avoid hiring individuals with any criminal history.