Workforce Bulletin

Our colleagues in the Immigration Law Group at Epstein Becker Green (Robert Groban Jr., Pierre Georges Bonnefil, Patrick Brady, Jang Hyuk Im, and Greta Ravitsky) have prepared a client alert regarding two rules that the Department of Homeland Security proposed on May 12, 2014.  If enacted, these rules would help the United States to attract and retain highly skilled workers.  Topics include:

• DHS Proposes to Issue Employment Authorization to Certain H-4 Spouses
• DHS Proposes to Enhance Flexibility for Highly Skilled Specialty Occupation Professionals

Read the full alert here. 

 

By John F. Fullerton

On April 29, 2014, the Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate Education, Labor and Pensions Subcommittee on Employee and Workplace Safety to seek a number of changes to the whistleblower protection provisions of Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) so it would track provisions of other, more recent whistleblower protection laws.  Here is a link to Dr. Michael's testimony.

The provisions at issue are intended to protect employees from retaliation by their employers for ...

Our colleagues Michelle Capezza, Jeffrey M. Landes, and Susan Gross Sholinsky will host Epstein Becker Green's retail roundtable summit from 12:00 p.m. - 2:00 p.m. on May 21. Join us for an open discussion among retail industry executives. The summit will be devoted to retail industry labor and employment issues that general counsel and human resources executives are facing.

Topics to include:

• Legal, logistical, ethical, and other factors to consider when creating and implementing internship programs
• Ramifications of newly-enacted state and local laws on handbook policies ...

Our colleagues Kara M. Maciel and Jordan B. Schwartz will be joined by special guest, David Sherwyn of Cornell University’s School of Hotel Administration in hosting a roundtable and webinar on May 29 (1:00 p.m. ET).  This interactive simulcast event will discuss strategies and tactics that employers can implement to stay ahead of the curve and ensure compliance with many of the most pressing wage and hour issues plaguing the hospitality industry.

Topics will include:

• Using the tip credit to your advantage: tip credit, tip pooling, and service charges
• Creating valid tip ...

 

By Kara Maciel

Our national hospitality practice frequently advises restaurant owners and operators on whether it is legal for employers to pass credit card swipe fees onto employees or even to guests, and the short answer is, yes, in most states. But whether an employer wants to actually pass along this charge and risk alienating their staff or their customers is another question.

With respect to consumers, in the majority of states, passing credit card swipe fees along in a customer surcharge became lawful in 2013. Only ten states prohibit it: California, Colorado, Connecticut ...

An NLRB Administrative Law Judge issued a Decision on April 29th in which he found that when a waiter in a restaurant in New York City, acting alone, instituted a class action lawsuit claiming violation of state or federal wage and hour laws, he was engaging in concerted activity on behalf of himself and co-workers, even if none of those co-workers are aware of the filing.

The Grain Journal recently published a series of seven articles by the national OSHA Practice Group at Epstein Becker Green.  The articles outline a checklist for employers to follow in order to comply with OSHA's complex Injury & Illness Recordkeeping regulations. The articles are broken down as follows:

1. Scope of OSHA's Injury & Illness Recordkeeping Rule;
2. OSHA's Recordkeeping Forms;
3. Recording Injuries and Illnesses;
4. Recording Workplace Injuries/Illnesses;
5. Miscellaneous Recording Procedures;
6. Updating and Verifying Records; and
7. Recordkeeping Action Plan.

Here is an ...

On April 8, 2014, Epstein Becker Green's national OSHA Practice Group presented a webinar regarding OSHA's Temporary Worker Initiative. The briefing addressed enforcement issues and data related to the temporary work relationship, and recommendations and strategies for managing safety and health issues related to the temporary workforce.

Companies are expected to employ many more temporary workers as the Affordable Care Act is implemented, particularly when the "Employer Mandate" kicks in, which will require employers with 50 or more workers to provide ...

The national OSHA Practice Group at Epstein Becker Green co-authored an article in BioFuels Journal entitled “Railcar Fall Protection: What OSHA Requires from Ethanol Plant Operators.”  Although the article principally addresses OSHA's enforcement landscape related to work on top of railcars at ethanol plants, the analysis carries over to work on top of any rolling stock (e.g., tanker trucks, railcars, rigs, etc.) in any industry.

Here is an excerpt from the article:

Addressing fall hazards is always among the OSHA's top enforcement priorities.  Indeed ...

By:  Kara Maciel, Adam Solander and Lindsay Smith

As the Employer Mandate compliance deadline looms for employers under the Affordable Care Act (“ACA”) and employers are closely monitoring employee hours, it is critical that employers take appropriate and lawful steps to record all hours worked by an employee.  If employers try to play games and manipulate how time records are maintained, they could find themselves in hot water under both the ACA and the Fair Labor Standards Act (“FLSA”). 

In what appears to be one of the first lawsuits challenging how hours are recorded under the ACA, an employee filed a putative collective action against Sun Holdings, LLC, a fast food franchisee.  The employee, a busboy at a Golden Corral restaurant, alleged that his managers required him to work under his real name and an alter ego to avoid paying him for all hours worked.  This set-up allegedly was designed to avoid having to pay overtime compensation under the FLSA and to count him as a full-time employee eligible to receive health benefits under the ACA.   

Accurate calculation and recording of the total number of hours worked by an employee is essential to compliance with the provisions of both the FLSA and the ACA.  Under the FLSA, an employer must pay an employee at least the minimum wage for all hours worked.  An employer must also provide overtime compensation at one and a half times the employee’s regular rate of pay for any hours worked in excess of 40 hours per week, unless that employee is classified as exempt.  Therefore, if an employer attributes some amount of time worked by one employee to an alter ego through which the employee cannot claim his time, the employee may be deprived of the overtime compensation he has earned.

Additionally, the ACA only provides benefits to employees who reach a certain amount of hours and binds employers with a certain amount of employees meeting that hour threshold.  The ACA applies to employers with 50 or more employees working 30 or more hours per week.  Only those employees working 30 hours or more per week are entitled to the health care coverage required by the ACA.  Therefore, an employee may lose the benefits to which he would otherwise be entitled if a portion of his hours worked is attributed to someone else, causing him to fall below the 30-hour minimum.  Furthermore, an employer may avoid the obligations of the ACA if it records 30 hours or more of work time for less than 50 of its employees. Although the Employer Mandate, which puts the employer-provided coverage into effect, does not kick in for large employers until January 1, 2015, applicability of the ACA depends upon the size of the affected workforce during the prior calendar year.      

A claim of this kind could be very costly for an employer because, as is the case here, such claims are often brought as collective actions.  In this case, the employee filed his claim on behalf of himself and all others similarly situated.  Although the amount of unpaid wages and liquidated damages he seeks only amounts to approximately $15,000.00, the franchisee owns roughly 400 restaurants in Texas and Florida.  Thus, a court award, or even a settlement, could be quite significant.

These allegations demonstrate the importance of correctly tracking employee hours and ensuring that an employee receives compensation and benefits in accordance with the total amount of hours worked.  Often times, this may mean training your managers as to the correct protocol for recording and compensating hours worked and monitoring to ensure managers are following that protocol. 

Importantly, this case forecasts what could be an emerging and growing area of litigation under the ACA, so employers must be ever vigilant about putting into practice protocols that ensure they are complying with the ACA and not manipulating hours to avoid the Employer Mandate’s requirements.  Considering that an analysis under the Employer Mandate’s look-back methodologies should be done this year, any changes to employees’ hours should be closely reviewed with legal counsel.  Although overtime compensation and benefits coverage can create increased financial burdens on employers, the cost of not complying can be even greater.