Regulating Employee Appearance
For many employers, particularly those in service or retail industries, managing employees' appearance is serious business. However, employers who wish to implement workplace rules regulating the appearance or dress of their employees must take heed of the legal pitfalls and compensation implications of such policies. For example, employers who require employees to purchase specific clothing that cannot generally be worn as part of their ordinary wardrobe must compensate employees for this expense by, among other potential measures, ensuring that the purchase cost does not cause their compensation to dip below the required minimum wage. Similarly, under certain circumstances, regulations impacting some hospitality industry employers require employers to reimburse employees for the entire purchase and maintenance cost associated with required clothing, regardless of whether the cost would cause the employees to drop below minimum wage.
Compensation for "On Call" Time
The question of whether employees must be paid for "on call" time often boils down to whether the employee is "waiting to be engaged" or "engaged to be waiting." While this inquiry is fact-intensive, generally, when an employee is able to use on-call time effectively for his or her own purposes — such as shopping or doing errands — the employee is "waiting to be engaged" and need not be paid. Conversely, employees who cannot use on-call time for their own purposes, whether because the duration of the wait time is too brief or because the periods of inactivity are unpredictable, are engaged to be waiting and must be paid for their time.
Compensation for Travel Time
The Fair Labor Standards Act contains detailed rules as to when employers must (or need not) compensate their employees for travel time. Typically, travel from home to work before the start of an employee's work day, and travel back home at the end of the day, are not compensable. Conversely, employees must usually be compensated for travel during the work day that is part of their principal work activities, including, for example, travel from job site to job site during the day. These issues are further impacted by questions including whether, in the course of traveling, employees use their own vehicles or employer-provided vehicles.
Dealing with Unauthorized Overtime Work
Non-exempt employees unilaterally working more time than they are scheduled to work can be an expensive proposition for employers, especially when the extra time causes the employee to exceed the 40-hour overtime threshold. Generally, employers may not simply decline to pay for such excess — albeit unauthorized —work time. Employers may instead discipline or even terminate employees who work excess time without authorization. Employers are also well-served to implement a policy clearly establishing that employees must secure advance, written permission to begin working early, remain at work beyond the end of their scheduled shift, or work overtime.
NLRA: Not Just For Unionized Employers
While many non-union employers believe that the National Labor Relations Act (NLRA) only applies to unionized employers, the NLRA applies to many non-union employers, as well. For example, NLRA Section 7 gives non-supervisory employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Concerted activities for purposes of "mutual aid or protection" has been construed to apply to matters like employers' social media policies, class action waivers, and confidentiality policies and provisions, regardless of whether the at-issue employers are unionized. Both unionized and non-unionized employers must be mindful of Section 7 — and other NLRA provisions — when implementing employment-related policies and rules, and entering into employment contracts.
Workers' Compensation Coverage for Out-of-State Employees
Under certain circumstances, employers are required to maintain workers' compensation insurance for individuals who perform work outside of the employer's "home" state. For example, under New York law, a non-New York employer must obtain such a policy if:
- it has a permanent physical location in New York or has employees whose primary work location is in New York;
- it serves as a contractor or subcontractor on a construction project in New York;
- it had employees physically present in New York for at least 40 hours per week for more than 2 consecutive weeks in the past year, or
- the employer is required to register with the state Department of Labor and pay unemployment insurance.
Employers are obligated to proactively evaluate their status in this regard and proceed accordingly.
Affordable Care Act Notices
Due to the Affordable Care Act's (ACA) amendment of the Fair Labor Standards Act (FLSA), all FLSA-covered employers, regardless of size, are now required to distribute "Marketplace Notices" to all of their employees. Marketplace Notices must contain a range of information, including the existence of, and ways to access, healthcare plans through the Health Insurance Marketplace, a description of the services provided by the Marketplace, and the circumstances under which employees may be eligible for a health insurance premium tax credit. Marketplace Notices must be provided to employees regardless of whether they are eligible to enroll in an employer-sponsored health plan. In addition to ensuring that all current employees have been provided with a Marketplace Notice, employers must also provide Marketplace Notices to all new employees within 14 days of their hire. As ACA enforcement measures are heightened, it is critical to comply with the Marketplace Notice requirement, as well as the various other provisions of the ACA. Please feel free to contact a Venable attorney for guidance regarding ACA and Marketplace Notice compliance.
Conducting Employee Background Checks
Employers who order background checks regarding current or prospective employees must be aware of the requirements of the Fair Credit Reporting Act (FCRA). Despite its name, the background checks covered by the FCRA go beyond mere credit checks; they can include, for example, an individual's criminal or motor vehicle history. Among other requirements, prior to conducting a background check, an employer must obtain written permission from the at-issue individual, and disclose in writing that the background check is being obtained for employment purposes. In the event that the background check's results cause the employer to consider taking an "adverse action" against the individual (such as termination or denial of employment), the FCRA contains specific guidelines and prerequisites, including notice provisions, as to the way in which the employer must proceed.
New York City's Paid Sick Time Law
Recent amendments to New York City's Earned Sick Time Act require certain New York City employers to provide paid sick leave to their employees. Specifically, as of April 1, 2014, employers with 5 or more employees working in New York City must provide their employees with at least 1 hour of paid sick leave for every 30 hours worked, subject to a maximum of 40 paid sick-leave hours in a calendar year. Among other mandates, the Act also requires that covered employers provide their employees with written notice of their right to use sick leave under the Act. This notice must include information regarding the accrual and use of sick time, the "year" according to which the employer operates, the employee's right to raise a complaint, and the employee's protection against retaliation.
Employees' Right to Access Personnel Files
Before agreeing to an employee's request to review his or her personnel file, it is important for employers to know whether applicable law requires that such access be given, as not all states' laws entitle employees to review their personnel files. For example, in New York, New Jersey, and Florida, there is no law requiring a private employer to permit an employee to view his or her file. Conversely, in California, after receiving a written request, employers must allow their employees to review personnel records which relate either to their job performance or a grievance against them. Notably, even in states where employees are entitled to review their personnel files, such employees are not always entitled to receive copies of those files.
Maintaining Employee Disciplinary Records
When disciplining employees for employment-related violations, employers should be sure to create — and then keep — detailed records of the employees' infractions and the discipline that was imposed. In the event that the employer subsequently decides to terminate the at-issue employee, such records will not only justify the termination, but may help to insulate the employer from, and defend against, claims of discrimination.
New Year's Reminders: Increased Minimum Wage and WTPA Notices
Please keep in mind these 2 important New Year items:
- Increase in Minimum Wage — Effective January 1, 2014, the New York State minimum wage will increase from $7.25/hour to $8.00/hour. The minimum wage will then increase to $8.75/hour and $9.00/hour as of January 1, 2015 and January 1, 2016, respectively. As of January 1, 2014, the minimum wage for service employees and food service workers who routinely receive tips will also increase. For service employees, the minimum wage will increase to $6.25/hour and the tip credit will increase to $1.75/hour, while the minimum wage for food service workers will increase to $5.50/hour with a maximum tip credit of $2.50/hour. As of January 1, 2014, the minimum wage will also increase in numerous states other than New York.
- NYS Wage Notices — New York private-sector employers should be sure to distribute Wage Notices to their employees at some point between January 1 and February 1. These Notices must be distributed annually, and must be kept for six years.