I am often asked by employers if they can deduct from an employee's paycheck money owed the employer for payroll advances, personal loans or for lost or damaged company property issued to the employee. Another common question is whether an employer may deduct from an employee's final paycheck amounts previously advanced for vacation or sick leave that was not yet earned. Until recently, the answer to these questions was determined exclusively under federal wage and hour laws. In most instances, the very simple answer was as long as the amount of the wage payment after offset netted the employee an hourly wage in excess of the minimum hourly wage, the deduction was permissible.
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.
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.
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.
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.
On April 29, 2014 Governor Haslam signed into law the Employee Online Privacy Act of 2014. This new law takes effect January 1, 2015 and applies to all employers in Tennessee who employ at least one person.
On December 3, 2014 the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) issued revisions to its regulations implementing Executive Order 11246, which prohibits certain forms of employment discrimination by federal contractors and subcontractors.