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Moderator Mark Adams, Director HR Services of Employers Association of the North East Speakers Roger Hood, Esq. Rachelle Green, Esq. Duffy & Sweeney, Ltd.

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Presentation on theme: "Moderator Mark Adams, Director HR Services of Employers Association of the North East Speakers Roger Hood, Esq. Rachelle Green, Esq. Duffy & Sweeney, Ltd."— Presentation transcript:

1 Moderator Mark Adams, Director HR Services of Employers Association of the North East Speakers Roger Hood, Esq. Rachelle Green, Esq. Duffy & Sweeney, Ltd. CRADLE TO GRAVE: LEGAL ASPECTS OF THE EMPLOYMENT LIFE CYCLE

2 Hot Topics to be Covered Today Employer Medical Marijuana PoliciesBan the Box LegislationBackground ChecksSunday PaySame Sex MarriageRhode Island Temporary Caregiver Leave LawEmployee Wellness ProgramsEmployee Classifications

3 Employer Medical Marijuana Policies Medical marijuana is legal in Massachusetts and Rhode Island Applicant testing in Massachusetts and Rhode Island Employers do not have to accept employees coming to work under the influence of any drugs or alcohol Employers with federal contracts must still prohibit all marijuana use Termination of an employee for use/presence of marijuana has not been litigated in Massachusetts or Rhode Island Takeaways

4 Ban the Box Legislation Effective January 1, 2014 in RI; in effect in MA Bans employers from inquiring about applicants’ criminal histories on job applications R.I.G.L. § 28-5-7(7) – it is now an unlawful employment practice “[f]or any employer to include on any application for employment... a question inquiring or to otherwise inquire either orally or in writing whether the applicant has ever been arrested, charged with or convicted of any crime” Public/private employers of more than 4 employees Employers not precluded from asking about criminal histories at or after first interview

5 Background Checks Governed by the Fair Credit Reporting Act (FCRA) Background Disclosure and Authorization form Summary of Rights under the FCRA New EEOC guidance EEOC Test Cases BMW Manufacturing Co.: EEOC alleges criminal background check has disparate impact on African-American applicants Dollar General Corp.: Company’s formula approach to criminal background checks has disparate impact Credit reports: pending legislation/litigation Closet Maid & Wholefoods in class action lawsuits - incorrect authorization and disclosure forms Increased activity in this area

6 Sunday Pay RI employers must pay time-and-a-half for time worked on Sundays and 9 designated holidays Review Park Row decision Small exceptions in RI that affect only a few employers MA employers follow FLSA with narrow exceptions Takeaways

7 Same-sex marriage United States v. Windsor Expands the group of individuals who may be a “spouse” for FMLA purposes RI Marriage Equality Act Effective August 1, 2013 Same-sex marriage is legal Tax/Insurance/Health care and family leave/Inheritance, property ownership and transfer rights/Parental rights

8 Rhode Island Temporary Caregiver Leave Law Applies to ALL employers in Rhode Island Extension of TDI Law and covered by TDI contributions 2 Main Components: (1) 4 weeks of leave per year; (2) eligibility to receive TDI payments while on leave Employees must provide notice to DLT and employer at least 30 days in advance In many cases, this leave runs concurrent with FMLA leave Takeaways

9 Employee Wellness Programs Background – The Good The Bad! HIPAA Nondiscrimination Americans with Disabilities Act Genetic Information Nondiscrimination Act Confidentiality Requirements The Ugly – Takeaways

10 Fair Labor Standards Act Protects Nonexempt Employees Establishes:  Federal minimum wage  Overtime pay for work over 40 hours/work week  Youth employment standards  Recordkeeping and retention rules  Enforcement, including penalties Misclassification (exempt v. non-exempt) is one of most common FLSA violations!

11 FLSA ONLY APPLIES TO EMPLOYEES The FLSA applies only to employees – not to independent contractors Economic reality test What makes independent contractor “independent?” The extent to which the services the individual provides are an integral part of the company's business How permanent the relationship has been The amount the individual has invested in facilities and equipment The individual’s opportunities for profit or loss The degree of independent business organization and operation by the individual The nature and degree of control by the company The degree of independent initiative, judgment, or foresight exercised by the individual who performs the services

12 FLSA Exemptions: Exempt Employees To determine whether employee is exempt, must meet duties and salary requirements Executive Administrative Learned and creative professional Highly-compensated Outside sales Other specific exemptions Other full overtime and partial overtime exemptions

13 FLSA Exemptions: Full Overtime Exemption  Employees of motor carriers  Employees of railroads, express companies and water carriers  Employees of air carriers  Announcers, news editors and chief engineers of radio or television stations in small communities  Salespeople, parts people or mechanics employed by automobile, truck, farm implement dealers and trailer or boat or aircraft dealers  Drivers and driver’s helpers who make local deliveries and are paid on a trip-rate or similar basis  Agricultural employees  Taxicab drivers  Employees of motions picture theaters  Computer systems analyst, computer programmers, software engineers and other similarly skilled computer professionals

14 FLSA: Partial Overtime Exemption  Commission employees of retail or service establishments  Private hospital and nursing home employees paid overtime on the basis of a 14-day period  Employees working under a union contract  Law enforcement and firefighting employees  Employees of national park concessions  Employees of wholesale petroleum distributors

15 Working Time: Workday Workday is the period of time on any particular day when employees begin their principal activity through the time when the principal activity ceases  May be longer than employees’ scheduled shift, hours, tour of duty, or production line time  Principal activity is any work of consequence that benefits the employer, regardless of when it’s performed (i.e., before or after the workday).  Employers must pay for voluntary unauthorized work if they know or should have known about it

16 Working Time: Confusing and Emerging Issues Work “suffered or permitted”— work that is not explicitly authorized On-call, call-in and waiting time Before and after work: “preparatory” or “concluding” activities Meal or rest breaks Smoke breaks Sleeping time Travel to/from work Overnight travel Travel from site-to-site Working at home Lectures, meeting or training programs Tip credit and tip pooling Fractional hours and time clocks Unauthorized overtime Telecommuting Smart phones (e.g., Blackberry/iPhone), tablets, laptops, and other mobile devices

17 Impermissible Overtime Methods Fixed sums for varying amounts of overtime Lump sum paid without regard to number of overtime hours does not qualify as overtime premium—even if lump sum equals or is greater than amount owed on per-hour basis Fixed salary for workweeks exceeding 40 hours Fixed salary for a regular workweek longer than 40 hours does not satisfy employer’s FLSA obligations for nonexempt employees Waiving overtime pay Overtime requirement may not be waived by agreement between employer and employees

18 Common FLSA Errors  Assuming that all employees paid by salary are exempt from overtime  Improperly applying an exemption  Failing to pay for all hours an employee is “suffered or permitted” to work  Limiting the number of hours employees are allowed to record  Failing to include all pay required for calculating the regular rate of overtime  Failing to add all hours worked in separate establishments for the same employer when calculating overtime due  Making improper deductions from wages that cut into the required minimum wage or overtime  Treating an employee as an independent contractor  Confusing federal and state law— state law applies when state law is more generous to employees

19 FLSA Recordkeeping and Enforcement  Document all compensation-related decisions  merit increases, bonus awards, performance appraisals, promotions, demotions, training opportunities  Maintain and retain complete and specific records of wages and hours of employees  Failure to keep required records may result in penalty  Serious consequences can result from inadequate or deliberately false records regarding employee status, wages or hours

20 Down the Road New House bill to reduce FMLA eligibility from 50 to 25 employees New bill in House and Senate to prohibit employment discrimination based on unemployment New RI bill introduced legalizing marijuana

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