Another Shoe Falls: DOL Issues Regulations Redefining Who is a "Spouse" for Purposes of FMLA

Following the Supreme Court's Decision in U.S. v. Windsor which invalidated Section 3 of the Defense of Marriage Act ("DOMA"), federal agencies scoured their enabling legislation to ensure that many Federal benefits and statutory protections were extended to same-sex couples.

The Department of Labor issued its Final Rule, effective March 27, 2015 implementing a "state of celebration" rule for the definition of a "spouse" for eligibility for leave under the Family and Medical Leave Act ("FMLA").  The regulations require an employer to look to the law of the place where the marriage was entered into, instead of the law of the state in which the employee resides.  29 CFR §§825.102 and 825.122(b).   This new definition of "spouse" under the Final Rule includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.

The Department of Labor Fact Sheet on these changes is here.

Are you the Kind of Employer Whose Employees Have to be Impaired to Work for You?

A recent study released by Mashable claims that 9.74% of Americans have gone to work under the influence of marijuana.  The sample size was 534 and the methodology was via SurveyMonkey, so while I wonder about the scientific reliability of the study and to whom it was directed, there is a lesson to be learned.

Do you run a workplace where nearly 10% of your employees have to get stoned to come to work? Even if they aren't stoned, are they coming in already having ingested alcohol?  I wonder what the study would have revealed if it asked about both alcohol and marijuana.

I get called by people who are having a rough time of it at work all the time.  They have to deal with "bossholes" (that's what we call immediate supervisors who are bullies) making ridiculous demands and giving humiliating "feedback."  These employees daily confront the aggravation of public transit or congested highways only to be greeted by a surly co-worker or supervisor who, under the guise of "business as usual," is completely lacking in social graces or empathy.

It's a rough world out there.  Be the kind of employer where your employees want to work.  Be the kind of supervisor who inspires those whom you supervise to make you look better while bettering themselves.  Remember that almost every one of your employees would leave you in a flash if they won the lottery jackpot.

The late Mike Conrad, playing Sargent Phil Esterhaus on Hill Street Blues used to say at the end of roll call "let's be careful out there."

I say "let's be human beings out there."

Who Says it's Recess?

One thing I know is you don't stand in the doorway of an elementary school where the bells have just rung for recess.

Bells are easy.  (Remember the expression, "You can't unring a bell?")  

But recesses in legislative sessions, well, they're a little more interesting.

Last year the DC Circuit Court of Appeals invalidated a number of so-called "recess appointments" to the National Labor Relations Board by President Obama.  The opinion in Canning v. NLRB is here.

Canning stems from a time when President Obama took advantage of a dysfunctional Senatorial calendar, where the leadership and minority were playing all kinds of calendar games under a "unanimous consent agreement."

Let's see how the D.C. Circuit Court of Appeals described it:

[T]he Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The agreement stated that "no business [would be] conducted" during those sessions. During the December 23 pro forma session, the Senate overrode its prior agreement by unanimous consent and passed a temporary extension to the payroll tax.  During  the January 3 pro forma session, the Senate acted to convene the second session of the 112th Congress and to fulfill its constitutional duty to meet on January 3.

The President's power to make recess appointments is found in the United States Constitution in Article II, Section 2, clause 3, which reads:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

The D.C. Circuit held that recess means "at the end of a session," and not "intrasession," and invalidated the President's appointments (thereby resulting in the NLRB not having a quorum with which to make precedential decisions, including the decision from which Canning appealed to the Supreme Court.)

Canning was argued today before the United States Supreme Court. During oral argument, as reported in more detail here and with even better analysis here, the Supreme Court justices expressed almost universal suspicion for the administration's maneuver.

While the decision could ultimately clarify what a recess appointment is, the specific issue is moot because President Obama has subsequently appointed five new NLRB members, all of whom were confirmed by the Senate on July 29, 2013.

Minimum Wage Alert for Multi-State Employers

The dropping of the Waterford Crystal Ball in Times Square, New York City also ushers in an increase in the minimum wage in New York and 13 other states.

The following states have adopted increases in minimum wage: 

• Arizona
• California
• Colorado
• Connecticut
• Florida
• Missouri
• Montana
• Ohio
• New Jersey
• New York
• Oregon
• Rhode Island
• Vermont
• Washington

In addition, some states, such as California and New York have already enacted further increases which will go into effect later this year or next year.

Some of these states have also increased the minimum amount to those employees who are tipped.  Typically an employer can take a partial "tip credit" against the minimum wage if the employee has signed a wage declaration for those tips.  Ask me about the pizzeria that did not properly calculate the tip credit for its bicycle delivery drivers and paid dearly.

Some municipalities have enacted even higher minimum wages, such as San Francisco and San Jose in California.

The minimum wage in Pennsylvania and under Federal Law remains $7.25, but there is talk in Washington of an increase.  As the Congress lumbers up to a reasonable facsimile of a functioning legislative body, we may see more action in this area.

Check with your human resources professional or labor counsel if you do business in more than one state.

I Wanted to Post Something about the Last Two Days of Argument Before the Supreme Court but....

I did, I really did.  I listened to hours of oral argument and read the briefs, but I've been beaten to it and all I need to say is here.

Enjoy your Easter and Passover holidays.  Next week we'll start talking about what's ahead on the radar for employers and employees in 2013.

To Hell with "Nemo."  Winter Storm Warnings.

Back in my post from January 26, 2011 which you can re-read here, I outlined the requirements for paying employees who miss time due to inclement weather.  Because there is a nameless storm beating down upon the Northeast and especially New England, this information bears repeating.

1.  If you close your office for inclement weather, you may deduct the hours not worked from hourly employees, but not salaried employees.

2.  If you are staying open, you may deduct the hours not worked from hourly employees who fail to report for duty, but obviously there is no change in the pay of salaried workers.  If as a result of staying open, an hourly employee works more than forty hours, you must pay overtime.

3.  If you close early or open late, you may reduced the wages of hourly employees for time not worked, but not salaried employees.

4.  It stands to reason that if an hourly employee was scheduled for more than forty hours, but works less than that because of inclement weather, that employee is not entitled to overtime.  Overtime is based upon time worked, not time scheduled.

So, to recap, salaried employees' wages are unaffected by winter storms, whereas hourly employees may well be affected.

That having been said, I have always espoused the philosophy that most employment disputes can be avoided by employers' liberal use of the "Golden Rule."  Treat your employees with the same dignity and respect with which you would want to be treated.  Or, to put it another way, don't be penny wise and pound foolish.  As I've also said repeatedly here, turnover costs money.

My original post had some references to Department of Labor guidelines; if you are looking for something to read by the light of the fireplace when your power goes out, be my guest.  Then again, if your power has gone out, you may not be reading this.

While we're on the subject, I simply refuse to call winter storms by the names bestowed upon them by commercial services seeking to use such nomenclature as a marketing technique.   During my first year of law school in Boston, I survived what they're still calling "The Great White Hurricane of 1978."  I feel for you New England.  Took me a week to dig my FIAT out of a snow drift (not that doing so was worthwhile, but that's a topic for another post.)

Another take on Conan Doyle's "His Last Bow"

Spoiler alert.  The final “official” Sherlock Holmes story written by Sir Arthur Conan Doyle ends with the great detective Holmes and his arch-enemy Dr. Moriarty heading over the falls in each other’s death-grip as the last act of their final battle.  Today, the parts of Homes and Moriarty will be played by the National Labor Relations Board and the D.C. Circuit Court of Appeals (I will leave it to you which one is which, as opinions will vary sharply).

In a recent D.C. Circuit case, the court invalidated President Obama’s recess appointments to the National Labor Relations Board.  On the other hand, we have that very board, and in particular its Acting General Counsel, issuing reports about the interplay between social media and the workplace.  It is tempting to ponder whether the D.C. Circuit’s decision will invalidate everything the NLRB has put out on the subject of social media.  If that is the case, what restrictions, if any, can an employer now place on its employee’s social media activities without running afoul of the “collective action” prohibition of the NLRA?

The short answer is, “nothing has changed.”  The D.C. circuit’s case, Canning v. NLRB was limited to one decision, and is likely to land before the U.S. Supreme Court, especially because the issue was raised by an adroit maneuver by the United States Senate in creating the illusion that it was in session to avoid actually being in recess.  In some respects, the Canning decision is more important for its analysis of when recess begins and a Recess begins (why don’t they just use bells like we did in elementary school?)

The bottom line is that the NLRA permits employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Social media may be the means by which that goal is achieved.  While personal complaints may not constitute “concerted activities,” it remains important for every employer to ensure that no action taken against an employee based upon a social media posting can possibly be interpreted as concerted activity.

Even if the board members appointed during recess (or Recess) are unceremoniously “un-appointed,” the NLRB is likely to continue the tack it has to date examining social media policies as encroaching on the employees’ rights to collective action.  In fact, the NLRB has already issued a press release essentially stating that they will proceed with business as usual.  There is no love lost between the D.C. Circuit Court of Appeals and the NLRB.  If the multiple Federal Express decisions involving independent contractor versus employee status are any indication, these two have been at each others’ throats for a long time, and there’s no clear sign of any impending peace, or “last bow,” as it were.

So, it’s best not to step between these two enemies and play it safe with your social media policies.