Employers Cannot Rely on Timekeeping Policies as a Defense to FLSA Claims

POSTED BY Richard D. Tuschman ON January 26, 2015

An employee's violation of timekeeping policies is not a defense to a Fair Labor Standards Act claim, if the employer knows or has reason to know that an employee underreported his hours, according to a recent decision by the Eleventh Circuit Court of Appeals, Bailey v. TitleMax of Georgia, Case No. 14-11747 (11th Cir., January 15, 2015).

Santonia Bailey worked at a TitleMax store in Jonesboro, Georgia for about a year. He claimed that he worked overtime hours for which he was not paid. But his time records did not reflect overtime hours, in part because he underreported his own hours by working off the clock, and in part because his supervisor edited his time records. Bailey resigned from TitleMax and then filed suit for unpaid overtime under the FLSA.

In defense of Bailey's claim, TitleMax asserted that Bailey violated the company's policies that required employees to: (1) accurately report their hours; (2) regularly verify the time shown on their timecards; and (3) report any work-related problems to a supervisor, a higher-level manager, or an anonymous employee hotline. The company argued that Bailey's violation of its policies made him responsible for any unpaid overtime and barred his claim under the equitable defenses of "unclean hands" and "in pari delicto" (Latin for "in equal fault"). The district court agreed and granted summary judgment to TitleMax.

The Eleventh Circuit reversed the case on appeal. The court noted that "the goal of the FLSA is to counteract the inequality of bargaining power between employees and employers." This principle, according to the court, compelled a rejection of TitleMax's defense:

If an employer knew or had reason to know that its employee underreported his hours, it cannot escape FLSA liability by asserting equitable defenses based on that underreporting. To hold otherwise would allow an employer to wield its superior bargaining power to pressure or even compel its employees to underreport their work hours, thus neutering the FLSA's purposeful reallocation of that power.

The usual rules for FLSA overtime liability therefore applied to Bailey's claim. First, an employee must show that he worked unpaid overtime. Second, the employee must show that the employer knew or should have known of the overtime work. Bailey met both elements. There was no dispute that Bailey worked overtime hours for which he was not paid. And there was no dispute that his supervisor knew of his overtime work. "The supervisor's knowledge," the court noted, "may be imputed to TitleMax, making it liable for the FLSA violation."

TitleMax does not represent a change in the law. To the contrary, the Eleventh Circuit noted that TitleMax failed to identify any case in which the U.S. Supreme Court or any federal circuit court approved the use of equitable defenses to bar an employee's FLSA claim when the employer knew the employee underreported his hours. But TitleMax should serve as a reminder to employers that adopting rigorous timekeeping and pay policies is insufficient to avoid FLSA liability. Employers must ensure that their timekeeping and pay practices are also compliant with the FLSA. Pointing the finger at non-compliant employees is not a sound legal strategy.



New York Trial Court Provides Guidance on Application of Corrections Law Factors


It should come as no surprise to New York employers that making an employment decision based on an applicant or employee's criminal background can be unlawful. See N.Y. Corr. Law § 752; see also N.Y. Exec. Law § 296 (15).  Despite this general prohibition, there are two statutory carve outs which permit employers to make such a decision: (1) when the employee's or applicant's criminal offense(s) bear a "direct relationship" to the employment sought; or (2) when such individual's employment poses "an unreasonable risk to the property or to the safety or welfare of specific individuals or the general public."  Moreover, N.Y. Corr. Law § 753 provides a list of factors for employers to consider when deciding whether an individual falls into one of these  exceptions.  Until recently, however, there was little court-provided guidance on how employers should implement these statutory provisions.  In a recent decision, Matter of Thomas v. New York City Dept. of Educ., Judge Peter H. Moulton of the New York Supreme Court offered some much-needed clarification on how employers should implement these exceptions.  

In Matter of Thomas, the petitioner – a former paraprofessional for special needs students who was fired from the Department of Education ("DOE") after pleading guilty to a drunk driving offense in which he seriously injured a pedestrian – argued that his application for reemployment had been improperly denied in violation of New York's ban on criminal convictions discrimination.  The DOE, in turn, argued that its decision was justified because it had considered the proper statutory factors when evaluating his application and the petitioner "denied responsibility for hitting the pedestrian and denied having an alcohol problem" during his interview.

Judge Moulton found that the DOE's decision to deny a former employee's application to return to work was "arbitrary and capricious" (a more employer-friendly standard than a typical civil action applied in Article 78 proceedings involving judicial review of governmental agency administrative decisions).  In so holding, Judge Moulton noted that "DOE considered all the requisite elements" in concluding that the petitioner's prior acts directly related to his prior convictions and/or employing him posed an unreasonable risk to the welfare and safety of children.  Yet, despite making the proper legal considerations, the Court found, with respect to the "directly relates" exception, the DOE never expressly connected the how the petitioner's former crime or acts related to his official job duties.  Nor could the Court find any record evidence concerning a direct relationship between the two.  As such, the Court concluded that the denial was based "simply on supposition unsupported by facts." 

As to whether petitioner qualified for the "unreasonable risk" exception, Judge Moulton observed that the DOE failed, pursuant to N.Y. Corr. Law §753(2), to afford petitioner the proper presumption of rehabilitation with regard to his prior offense, as he had obtained a certificate of relief from disabilities as proof that he was rehabilitated.  The Court, therefore, found that the DOE, in concluding that petitioner posed a risk to children "because he would relapse or because he is in denial," simply failed to trust that the petitioner had, in fact, been rehabilitated without any legitimate basis for doing so.  

The lesson of this opinion for New York employers is that merely considering the statutory factors set forth in the New York Corrections Law may not be enough to take action based on an employee's or applicant's criminal history.  Accordingly, when making such decisions, employers should make specific and well-founded determinations: (a) connecting the individual's crime to his or her ability to perform the job duties in question; or (b) articulating the specific reasons the individual may pose an unreasonable risk to property or safety.  These findings should also take into account all of the factors set forth in  N.Y. Corr. Law §753.  


Home Health Care Remains Affordable: New Companionship Exemption Rules Overturned


A federal court has invalidated the U.S. Department of Labor's ("DOL") amended rule that would have extended minimum wage and overtime protections to nearly two million home health care workers and affected the cost and availability of those services to the millions of patients under their care. The ruling represents a significant victory for the home health care industry, though it remains to be seen if the court's ruling will be appealed. 

As background, since 1974 the Fair Labor Standards Act ("FLSA") has covered workers who perform a "domestic service" – i.e., services of a household nature performed by a worker in a private home. This term includes services performed by babysitters, housekeepers, nannies, nurses, handymen, gardeners, home health aides, and family chauffeurs, among others.  However, the FLSA also provides for a "companionship services" exemption, exempting from minimum wage and overtime protection certain domestic service workers employed to provide "companionship services" for an elderly person or a person with an illness, injury, or disability.

On September 17, 2013, the DOL announced an amended rule that narrowed the companionship services exemption in two ways. First, it narrowed the definition of "companionship services." Second, it provided that the exemption could only be claimed by the individual, family, or household using the services, not by a third party such as a home health care agency.

The new rule was to take effect January 1, 2015. However, health care industry groups challenged the amended rule in court, and thus far their challenge has been successful.

On December 22, 2014, the court in Home Care Association of America v. Weil, et al., invalidated the third-party agency portion of the new rule. The court ruled that the DOL had no authority to narrow the exemption to apply only to those caregivers who are employed by the individuals for whom the caregivers provide their services.  Under the new rule, most home health care agencies would not have been able to claim the exemption, even if the work performed would otherwise be exempt. However, the court found that it was Congress' intent that the companionship services exemption apply to any employee, regardless of who "writes the check" for the employee's compensation.

The new rule also narrowed the definition of the word "care" as it related to "companionship services," such that much of the work performed by home health aides (such as feeding, dressing, bathing, etc.) would no longer qualify for the exemption. On January 14, 2015, the court invalidated that portion of the new rule as well. The court held that the DOL exceeded its authority to redefine, after more than 40 years, what constitutes the provision of "companionship services." The court found that the DOL's regulation impermissibly conflicted with the plain language of the FLSA. 

Had the new rule taken effect, all those who either provided or received companionship services would have been significantly impacted. Since payment for companionship services is mostly self-funded by elderly patients and their families, they would either have had to pay more for services (assuming they could afford the additional cost) or limit the amount of care they received. In turn, home health aides currently providing care in excess of 40 hours per week, would likely have had their work hours reduced so that patients and their families could avoid the additional cost.    

Because the third-party employer exemption had already been vacated on December 22, 2014, the entire regulation has now been invalidated, and the DOL is without authority to enforce the new rule. The DOL has not yet indicated whether it intends to appeal the court's ruling.



U.S. Labor Department and Florida Department of Revenue Team Up to Prevent Worker Misclassification


Now more than ever, Florida employers should ensure they are properly classifying their workers.

The U.S. Department of Labor and the Florida Department of Revenue have announced an agreement between the two agencies to prevent the misclassification of workers as independent contractors rather than employees. 

The DOL's January 13th press release explains the significance of proper classification:

Business models that attempt to change or obscure the employment relationship through the use of independent contractors are not inherently illegal, but they may not be used to evade compliance with federal labor law. Although legitimate independent contractors are an important part of our economy, the misclassification of employees presents a serious problem. Independent contractors are often denied access to critical benefits and protections, such as family and medical leave, overtime compensation, minimum wage pay and unemployment insurance, to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often find it difficult to compete with those who are skirting the law.

So how will the agencies' collaboration prevent worker misclassification?  By sharing information and coordinating enforcement efforts, according to the DOL's "Employee Misclassification" web page.  This dual-agency enforcement approach is likely to increase the risk and potential cost of misclassifying employees.   Employers that misclassify employees may be liable not only for overtime compensation, but also FICA and unemployment insurance taxes, and workers' compensation premiums. 

Employers that are uncertain about the proper classification of their workers should consult the DOL's guidance and the Florida Department of Revenue's guidance on the issue.  Employers that remain uncertain about the classification of their workers should consider consulting a qualified employment lawyer. 



Employers Should Begin Preparation for Opening of FY 2016 H-1B Cap


The beginning of the calendar year is the perfect time for employers to begin planning for the FY 2016 H-1B cap filing season, which will begin on Wednesday, April 1, 2015.

Commensurate with the nation's economic growth, the demand for H-1B visas is expected to surpass years past. The H-1B quotas for FY 2016 are again capped at 65,000 petitions in addition to 20,000 petitions for those beneficiaries with advanced degrees from a U.S. college or university.    

As in the past few years, H-1B cases received during the first week of filing (beginning April 1) are expected to be treated equally for cap purposes. If USCIS receives petitions in excess of the aforementioned quotas during this filing period, it will implement a computerized lottery system to randomly select cases for processing. It is imperative that employers file petitions within this window—ideally on March 31, 2015 via overnight delivery—to maximize their chances of selection. In FY 2015, the USCIS received approximately 172,500 petitions during the same time frame. Effectively, that means that approximately 87,500 petitions were not even selected for processing.     

The H-1B classification is reserved for "specialty occupations." Immigration regulations allow for an individual to remain in the United States in this status for a total of six years. To qualify for H-1B classification, the foreign worker must possess a bachelor's degree in a field related to the position offered from a U.S. college/university, or an equivalent degree from a foreign school. In addition, the U.S. position offered must require a bachelor's degree in the related field as the minimum educational requirement. Persons with degrees from foreign universities may qualify for H-1B classification if a certified evaluation agency determines that the degree is equivalent to a bachelor's degree conferred by an accredited school in the United States. Individuals who have not completed a college degree may substitute three years of professional-level experience as the equivalent of one year of a baccalaureate degree. Additionally, a key prerequisite to the filing of the H-1B petition is obtaining an approved Labor Condition Application (LCA) from the U.S. Department of Labor. The LCA serves as an attestation that, among other things, the employer will remunerate the foreign worker at or above the 'prevailing wage' for the occupation in the location of intended employment.   

Certain H-1B cases may not be subject to the lottery system, depending on whether the employer is a private or government research organization, a nonprofit institution of higher education, or a for-profit entity related to or affiliated with an institution of higher education. Such qualifying employers may be able to file an H-1B petition at any point during the year, and would not be subject to the lottery system described above. Moreover, a worker's second application for an H-1B visa, as well as H-1B extension petitions, applications for an H-1B to transfer employers, and petitions to amend already-approved H-1B status are also exempt from the numerical cap limitations.   

Employers should immediately identify individuals who would benefit from H-1B status anytime within the next 12 - 14 months. These can include any new hires, or current employees working on OPT (optional practical training following graduation), STEM OPT, or interns or trainees.



New OSHA Recordkeeping Rule Goes into Effect on January 1, 2015

POSTED BY Richard D. Tuschman ON December 22, 2014

The Occupational Safety and Health Administration’s revised recordkeeping rule goes into effect on January 1, 2015. OSHA’s recordkeeping rule requires covered employers to prepare and maintain records of serious occupational injuries and illnesses, using the OSHA 300 Log.

The revised rule includes two key changes: First, the rule revises the list of low-hazard industries that are exempt from the requirement to routinely keep OSHA injury and illness records. To determine whether your business is exempt under the new rule, visit OSHA’s website here. Employers with ten or fewer employees at all times during the previous calendar year remain exempt from routinely keeping OSHA injury and illness records.

Second, the rule expands the list of severe work-related injuries that all covered employers must report to OSHA. The previous rule required employers to report to OSHA within 24 hours all work-related in-patient hospitalizations of three or more employees. The revised rule applies to work-related in-patient hospitalizations of one or more employees and adds the requirement to report to OSHA any work-related amputation or loss of an eye within 24 hours. The revised rule retains the current requirement to report all work-related fatalities within eight hours. These rules apply to all employers under OSHA’s jurisdiction (most private sector employers are covered), including those that are exempt from the routine record-keeping rules.

For additional details, see OSHA’s fact sheet on the new recordkeeping requirements.


Update: Time Spent Going Through Security Is Not Indispensable and, Therefore, Is Not Compensable

POSTED BY Nefertari S. Rigsby ON December 9, 2014

In an important decision under the Fair Labor Standards Act, the Supreme Court has issued a ruling in Busk v. Integrity Staffing Solutions, Inc. in favor of employers. As previously discussed in October, the Court had to determine whether employers are required to pay their hourly employees for time spent going through an anti-theft security clearance at the end of each shift.

Justice Clarence Thomas authored the opinion of the Court, which reversed the Ninth Circuit's determination that such time was compensable. Justices Sotomayor and Kagan submitted a concurring opinion joining the majority.

The Supreme Court held that going through security is not integral and indispensable to the principal activities that the employee is employed to perform. In this case, Integrity Staffing employed individuals to retrieve products from warehouse shelves and package those products for shipment to Amazon customers. Going through security at the end of a shift is not a part of the warehouse employees' principal duties.

The Court further noted that whether an employee is required to undergo a particular activity is not determinative of whether the employee must be compensated for the time it takes to undergo the activity. The "integral and indispensable" test is tied to the productive work that the employee is employed to perform and not whether the activity is mandatory.

Based on this ruling, employers may require their hourly employees to go through security clearance for loss prevention purposes and not compensate them for the time they must do so after their shifts.



Florida's Minimum Wage Increases to $8.05 in 2015

POSTED BY Nefertari S. Rigsby ON DECEMBER 02, 2014

As 2014 comes to a close, employers must be aware of the pending increase in wages for their nonexempt employees. Florida's minimum wage will increase to $8.05 on January 1, 2015. With the increase, Florida's required minimum wage is nearly one dollar more than the federal minimum wage ($7.25). On September 30th of each year, Florida's Department of Economic Opportunity recalculates the State's minimum wage as required by Florida's minimum wage law found in Section 448 of the Florida Statutes. This calculation is based on the increase in the federal Consumer Price Index for Urban Earners and Clerical Workers in the Southern Region. This minimum wage increase applies to all employees who are covered by the Fair Labor Standards Act.

Among employees who must receive this minimum wage in Florida are tipped employees working in the State. Employers who employ individuals who receive tips may take a credit of up to $3.02 per hour. The tipped employees must also receive a direct hourly wage. Effective January 1, 2015, this direct hourly wage must be at least $5.03, which is Florida's new minimum wage ($8.05) minus the permissible tip credit ($3.02).



President Obama Outlines Executive Action on Immigration


President Obama has ambitiously announced several executive actions that have the potential to impact undocumented immigrants, as well as employers, foreign national workers, and their spouses. While these efforts are focused on administrative relief for undocumented immigrants who apply to remain in the United States, these executive actions potentially offer significant benefits to the employment-focused immigration community.

The following is an analysis of the potential benefits that may arise from President Obama's initiatives, which he announced on November 20, 2014.

  • Expand "Deferred Action" programs. President Obama signed an Executive Order that offers certain undocumented immigrants the opportunity to apply for an employment authorization document, or EAD, which would allow them to work legally in the United States. The Department of Homeland Security ("DHS") would also agree not to remove the applicant during this period. Note: This three-year grant does not provide for any temporary immigration status, nor any pathway to a green card or citizenship.
  • Extend work authorization to the spouses of H-1B visa holders. Currently, the spouses of H-1B workers (H-4 visa holders) are ineligible for employment. President Obama's plan notes that DHS will finalize new rules to allow for H-4 visa holders to work while waiting for their spouses’ green card applications to be approved.
  • Enhance options for foreign entrepreneurs. Certain foreign entrepreneurs who conduct business that is in the "national interest" of the United States can apply for a green card. To encourage economic growth, the President announced that his immigration plans would expand the availability of this option for foreign entrepreneurs.
  • Enhance options for employers of foreign workers. The proposal also reduces the backlog by eliminating annual country caps and adding additional visas to the system. DHS will also extend the use of "Optional Practical Training," a State Department program that allows for certain periods of work authorization while enrolled or for a short time following graduation.
  • Clarify application processes that impact employers of foreign workers. The President's plan also calls for DHS to issue clear guidance on the L-1B specialized knowledge category and on AC21 "same or similar" adjustment portability, as well as for modernization of the Department of Labor's labor certification, or PERM, process.
  • Improve the family-based immigration system. The President's plan also proposes raising annual caps on family-based green cards, which would reduce the wait times that qualifying family members face while waiting for their applications to be approved.

While the President's executive actions are likely to benefit employers and their foreign national employees and their families, in addition to those who are currently undocumented, a more permanent legislative solution is still very much in need. It is expected to be at least early 2015 for expansions of deferred action to take effect, and possibly several more months to implement and clarify the proposed regulatory changes and administrative guidance.

We will continue to monitor the items outlined in the President's initiatives and provide any updates and clarification as they become available.


Court Slaps Down EEOC Subpoena, Refusing to Allow Agency to Expand its Investigation


The Equal Employment Opportunity Commission has broad authority to investigate allegations of employment discrimination. But there are limits to that authority, as illustrated by a recent Eleventh Circuit Court of Appeals decision affirming the district court's denial of the EEOC's application to enforce an administrative subpoena that would have expanded its investigation of a single EEOC charge.

In EEOC v. Royal Caribbean Cruises, Ltd. (11th Cir., November 6, 2014), Jose Morabito, a former assistant waiter on one of RCCL's cruise ships, alleged that RCCL fired him in 2010 in violation of the Americans with Disabilities Act ("ADA") because he had been diagnosed with HIV and Kaposi Sarcoma, even though his physician had declared him fit for duty. RCCL admitted discharging Morabito because of his medical condition, but contended that because RCCL's ships are registered under the law of the Bahamas, RCCL was required to follow the Bahamas Maritime Authority ("BMA") medical standards for seafarers, which disqualified Morabito from duty at sea.  

During its investigation, the EEOC requested a list of all employees discharged by RCCL since 2010 pursuant to the BMA medical standards. RCCL objected, asserting that the ADA did not cover foreign nationals working on foreign-flagged ships and that the information sought was irrelevant to Morabito's charge. The EEOC then issued an administrative subpoena that demanded a list of all employees who were not hired, who were discharged, or whose contracts were not renewed, from August 25, 2009 through the present because of a medical condition. RCCL partially complied by providing records for employees or applicants who were U.S. citizens, and the EEOC sought to compel enforcement of the subpoena for the remaining records.  The district court denied the application on the grounds that the information sought was not relevant to Morabito's charge and that compliance would be unduly burdensome.

The Eleventh Circuit affirmed the district court's decision. Noting the EEOC's broad authority to investigate alleged discrimination, the court nevertheless ruled that the EEOC's subpoena went too far. "It is not immediately clear," the court wrote, "why company-wide data regarding employees and applicants around the world with any medical condition, including conditions not specifically covered by the BMA medical standards or similar to Mr. Morabito's, would shed light on Mr. Morabito's individual charge that he was fired because of his HIV and Kaposi Sarcoma diagnoses." The court went on to reject the EEOC's argument that the EEOC is entitled to expand its investigation to uncover other potential violations and victims of discrimination on the basis of disability. "The relevance that is necessary to support a subpoena for the investigation of an individual charge," the court held, "is relevance to the contested issues that must be decided to resolve that charge, not relevance to issues that may be contested when and if future charges are brought by others."

Normally an employer is well-advised to cooperate fully during an EEOC investigation. But a red flag should go up when the EEOC wants to expand its investigation beyond the charge at issue. In such cases, an employer may want to consider resisting the EEOC's requests and asking a federal court to rein in the EEOC. An "expanded" EEOC investigation is the last thing most employers need.  


Failure to Disclose Procedures Dooms Arbitration Agreement


As a general rule, courts will uphold agreements that require employees to arbitrate their employment disputes. But an employer seeking to compel arbitration must show that the employee signed a valid written arbitration agreement. And according to a recent decision by Florida's Fourth District Court of Appeals, an arbitration agreement is not valid if the employer fails to disclose the arbitration procedures to the employee when the employee signs the agreement.

Shelby Ann Spicer signed an employment agreement with Tenet Florida Physician Services, LLC ("Tenet") on December 15, 2011. The agreement stated that any disputes regarding her employment "would be subject to the Tenet Fair Treatment Process ("FTP"), which includes final and binding arbitration." But the FTP was not attached to the employment agreement, and the agreement did not provide any specific directions as to how the employee could obtain a copy or locate the FTP. On January 1, 2012, Spicer was given directions as to how to access the website where the FTP was posted. The FTP described the arbitration procedure in detail.

In February 2013, Spicer filed a complaint against Tenet under the Florida Whistleblower's Act. Tenet moved to compel arbitration, and the trial court granted the motion. Spicer appealed.

In Spicer v. Tenet Florida Physician Services, LLC (Fla. 4th DCA, October 22, 2014), the Fourth DCA reversed, holding that Spicer had not signed a valid arbitration agreement. The court noted that to be valid, an arbitration agreement "must be definite enough so that the parties at least have some idea as to what particular matters are to be submitted to arbitration and set forth some procedures by which arbitration is to be effected." The employment agreement, standing alone, did not meet this test because it contained no description of the procedures to be used in arbitration. And while the agreement referred to the FTP, Spicer had not been given access to the FTP until 17 days after she signed the agreement. Therefore, the court reasoned, the FTP was not incorporated into the agreement, and the agreement was invalid.

Spicer is not the only recent case in which a Florida court has invalidated an employer's arbitration agreement. In December 2013, we reported on a ruling by Florida's Second DCA that an arbitration agreement containing a prevailing party attorney's fee provision was invalid because it had a "chilling effect" that discouraged employees from bringing Fair Labor Standards Act claims.

The takeaway for employers is to treat the process of mandatory arbitration of employment disputes with great care. If you are unsure whether your mandatory arbitration agreements pass legal muster, obtain the advice of a qualified employment lawyer.


E-Cigarettes in the Workplace


Employers should be aware of the new electronic cigarette fad, and the need to address workplace policies accordingly.

Electronic cigarettes, also known as e-cigarettes, are battery-powered devices that heat up nicotine-laced liquid, turning it into a vapor that users inhale, or "vape," and then exhale. Most look like conventional cigarettes, cigars, or pipes, but some e-cigarettes resemble everyday items such as pens and USB memory sticks. According to a recent World Health Organization report, since the invention of the e-cigarette just over a decade ago, the e-cigarette industry has grown into an estimated $3 billion global business market with 466 brands of e-cigarettes and related items available to consumers.

Research regarding the health effects of e-cigarettes, especially the safety of secondhand vapor, is still in its infancy. According to the Food and Drug Administration, because e-cigarettes have not been fully studied, the following things are not presently known: (1) the potential risks of e-cigarettes when used as intended, (2) how much nicotine or other potentially harmful chemicals are inhaled during e-cigarette use, and (3) whether there are any benefits associated with using e-cigarettes and related products. While some people believe that smoking e-cigarettes is safer than smoking traditional cigarettes, and may help smokers reduce or altogether quit their use of traditional cigarettes, others claim that secondhand vapor is generally harmful to one's health and that it irritates the eyes, exacerbates respiratory conditions and could lead to allergic reactions. In the employment context, some claim that e-cigarette use could increase employee productivity and, to the extent smokers switch from traditional cigarettes to electronic cigarettes, decrease the health and medical costs associated with employees who smoke.

Even though current research does not yet provide a definitive response to these particular claims, dozens of states and numerous municipalities have already passed laws and regulations relating to e-cigarettes. For example, more than three dozen states currently prohibit the sale of e-cigarettes to minors (including Florida), and about a dozen states have enacted some form of usage ban in public places such as schools and government buildings. Florida does not have such a statewide ban, but a small number of counties and cities in Florida have enacted limited bans of e-cigarette use in certain public places. New Jersey, North Dakota and Utah are the only states that have gone so far as to forbid the use of e-cigarettes everywhere that smoking is banned. This move to regulate e-cigarette use is in line with the World Health Organization's recommendation to ban the use of e-cigarettes indoors in public places as well as at places of work "until exhaled vapor is proven to be not harmful to bystanders."

So, in light of this hazy legal and medical landscape, what is an employer to do if an employee asks to "vape" at work? The employer should first check to see if any state or local laws address the use of e-cigarettes at their workplace. If laws exist that require a ban of e-cigarette use at places of work, the answer is clear. If there is no such law regarding e-cigarette use in the workplace, the employer should nonetheless strongly consider amending its existing smoking policy to include e-cigarettes or any other electronic, nicotine-delivery device that simulates the use of tobacco. At this point, the risk of liability to the employer due to permitting e-cigarette use in the workplace outweighs the potential, limited benefits.


The Cost of Security for Employers: Is Time Spent Going Through Security Compensable?


The Supreme Court will soon decide whether employers will be required to pay their employees for time spent going through a security clearance at the end of each shift. The case is Busk v. Integrity Staffing Solutions, Inc., 713 F.3d 525 (9th Cir. 2013). The Court heard oral arguments on October 8, 2014.

Integrity Staffing Solutions, a Nevada corporation, provides warehouse space and staffing to clients like Amazon.com. The plaintiffs, Jesse Busk and Laurie Castro, are former hourly employees of Integrity Staffing in two Nevada warehouses. Integrity Staffing required its employees to pass through a security clearance at the end of each shift. During these security checks, the employees were searched, required to remove their wallets, keys and belts, and passed through metal detectors. The security clearances were utilized to minimize theft of products in the warehouse—a daily loss prevention measure. However, the employees were not paid for the time it took for them to go through this security clearance, which required employees to wait up to 25 minutes.

Additionally, on their 30-minute lunch periods, the employees spent 10 minutes of the meal period walking to and from the cafeteria and/or undergoing security clearances. The employees were not paid for the 10 minutes that it took to go through security during their meal periods and received less than 30 minutes for lunch, receiving warnings from managers to eat quickly so they could clock back in.

The plaintiffs filed suit against Integrity Staffing, alleging that the employer violated the Fair Labor Standards Act, which requires employers to compensate employees for postliminary activities if they are an integral and indispensable part of the employee's principal activities. The plaintiffs alleged the security clearances that they were required to go through, both during their lunch breaks and at the end of their shifts, were necessary to their work as warehouse employees and done for Integrity Staffing's benefit. The lower Court dismissed the plaintiffs' claims for unpaid wages, but the Ninth Circuit reversed the dismissal of the plaintiffs' claims and found that they stated a plausible claim for a FLSA violation as to security clearances. The Court upheld the dismissal of the FLSA claims related to the shortened meal periods.

The decision was appealed to the Supreme Court who must now determine whether time spent going through required security clearances at work is compensable. Depending on the Supreme Court's ruling, employers may have to consider whether the cost of security is worth the additional compensation that must be paid to its hourly employees who are subjected to such security measures.



Reasonable Accommodations Under the ADA Do Not Require Changing a Job's Essential Functions


Weldon Williams, a pharmacist, suffered from diabetes which limited his ability to stand for extended periods of time. Williams sued his former employer Revco Discount Drug Centers, Inc., d/b/a CVS Pharmacy, Inc. ("CVS") alleging that CVS failed to accommodate his requests for an accommodation under the Americans With Disabilities Act ("ADA"). Williams "acknowledged that his position involved extended standing over the course of an eight-hour shift and frequent movement around the pharmacy," which CVS argued were essential functions of his job. The accommodation Williams requested would have required CVS to hire a fulltime pharmacy technician to assist him when his disability prevented him from performing his job duties.

In the case of Williams v. Revco Disc. Drug Centers, Inc., 552 Fed. Appx. 919, 920 (11th Cir. 2014) cert. denied, 83 USLW 3005 (U.S. 2014), the Eleventh Circuit Court of Appeals affirmed the U.S. District Court's ruling which held that CVS was not required to modify the essential functions of Williams's job to comply with the ADA's requirement that employers provide a "reasonable accommodation" to qualified individuals with a disability. The court noted that to succeed on a claim under the ADA, a plaintiff must prove that: (1) he or she is disabled; (2) he or she is a "qualified individual;" and (3) he or she was subjected to unlawful discrimination because of his disability. To be considered a "qualified individual," the plaintiff must "show that he can perform the essential functions of his position with or without reasonable accommodations." Courts will look to a variety of factors in determining whether a job requirement is an "essential function" of the position including (but not limited to): a) what the employer believes to be the essential functions; (b) written job descriptions for the position; (c) the amount of time spent performing a specific function; and (d) the "consequences of not requiring the employee to perform the function."

Such a determination is made on a case-by-case basis and there are no hard and fast rules. However, the employee has the burden of identifying the accommodation sought, which is not considered reasonable if it would cause an undue hardship on the employer. This was a burden Williams simply could not meet, especially because he "admitted that his physician never submitted any paperwork outlining the types of accommodations that [he] might require."

Williams sought "certiorari" of the Eleventh Circuit's ruling, which is a petition to the Supreme Court requesting review of an appellate court decision. On October 6, 2014, the Supreme Court denied Williams' petition.

While a victory for employers who abide by the ADA's requirement, the Williams case reminds us of the complexities of this law. While the Eleventh Circuit agreed with the employer here, the court's opinion also underscored the importance of the "interactive process" employers are required to undertake to determine the appropriate reasonable accommodation for a disabled employee. While this process may be informal, it must "identify the employee's limitations and any possible accommodations." Involving experienced H.R. professionals early in the process is a must, and consultation with labor and employment counsel is advisable if there are any questions as to whether a job function is "essential," if an employee is "qualified," or if an accommodation is "reasonable," under the ADA.



Opening of the 2016 Diversity Immigrant Visa Program Announced


The State Department has announced that it will accept applications for the FY 2016 "diversity immigrant visa" lottery beginning October 1, 2014. Applicants who are selected and approved may submit their green card applications starting on October 1, 2015.

The State Department annually accepts "diversity immigrant visa" applications from qualified individuals born in certain countries with historically low rates of immigration to the United States. Congress made 50,000 of these "diversity immigrant visas" (or "DVs") available for fiscal year 2016, drawn from a randomized computer lottery of all applicants. This year, the State Department will accept applications from October 1, 2014 until November 3, 2014.

Eligibility requirements are as follows. First, applicants must be born in countries who have historically low immigration rates. Individuals born in the following countries are ineligible to apply for a DV for fiscal year 2016:

Bangladesh, Brazil, Canada, China (mainland-born)**, Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Nigeria, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. **Note: people born in Taiwan, Hong Kong, and Macau may apply.

Those not born in an eligible country may still be able to apply for a DV through a spouse (if that spouse was born in an eligible country) or, in certain circumstances, through a parent. An applicant must also have a high school education (or its equivalent) or, alternatively, two years of work experience in certain positions to qualify.

Employers are often interested in having a qualifying employee apply for a DV in order to avoid the costly and intensive employment-based "green card" application process.

Registering to apply for the diversity visa program is done online at the program site. The State Department encourages applicants not to wait until the last week of the registration period to enter, as heavy demand may result in website delays. Applicants will be able to check if they were selected in the randomized lottery starting May 1, 2015. Applicants should carefully follow the online instructions in order to avoid having their applications disqualified.

Prospective applicants are advised to contact immigration counsel for more information on the benefits of the DV program and for answers to any questions they may have about whether they qualify for the program.


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