Workplace Tips for the Holiday Season

Happy Thanksgiving! With the holiday season upon us, we wanted to give you a quick refresher on some tricky workplace issues that are common this time of year.

Holiday Parties

While holiday parties can increase morale and provide an opportunity for team building, without planning and forethought, holiday parties can cause human resources issues that will follow you well into the new year.

Wage and Hour Issues

If you require non-exempt employees to attend a holiday party, you must compensate them for the time they spend there. If the party occurs during normal work hours, non-exempt employees are likely being compensated anyway, but pay is also required for off-hours parties if attendance is mandated. In addition, any mandatory time spent at the party counts as work time for overtime calculation purposes. The simplest way to avoid additional pay obligations, if desired, is to plan parties for non-work hours and to clearly communicate that attendance is optional for non-exempt employees.

This Holiday Season, Beware the Unpaid Volunteer

As Thanksgiving and the holiday season approaches, companies often look for ways to contribute to charitable causes within their communities. One way they might accomplish this worthwhile endeavor is by creating and encouraging their employees to participate in formal volunteer opportunities. This is a great way for companies to give back and for individual employees to take a break from the rigors of everyday business life and focus on helping others. Whether employees should be compensated for participating in these “volunteer” activities, however, is not always clear, and if companies aren’t careful, they could be the recipients of an unwanted gift this season — a wage and hour lawsuit.

There are a few key concepts under the Fair Labor Standards Act (FLSA) that employers must be aware of when it comes to volunteers. An overarching principle is that individuals may not provide volunteer services to for-profit companies under any circumstances. That rule is easy to follow, but what about situations where an employer is “sponsoring” volunteer activities in the community and encouraging (or rewarding) their employees’ attendance at such activities? In that situation, caselaw and guidance from the U.S. Department of Labor (DOL) suggests that a nonexempt employee performing volunteer services need not be compensated if each of the following criteria are met:

Driver Safety Programs and Distracted Driving Initiatives – OSHA Pushes to Reduce the Risk of Serious Injury and Company Losses

The Occupational Safety and Health Administration (OSHA) recenty rolled out programs and publications aimed at encouraging employers to focus on programs related to safety on the roadways.

In its Guidelines for Employers to ReduceMotor Vehicle Crashes publication (Guidelines), OSHA states that “every 12 minutes someone dies in a motor vehicle crash, every 10 seconds an injury occurs, and every five seconds a crash occurs.” The Guidelines point out that many of these incidents occur during the workday or commute to and from work.

Supreme Court Hears Argument in Cases that Could Reshape Employment Discrimination Landscape

The Supreme Court recently heard oral argument in a series of cases that will determine whether federal employment discrimination protection extends to sexual orientation and gender identity. The Court’s decisions in the cases could have a far-reaching impact on employers nationwide.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of “race, color, religion, sex and national origin.” At issue in the trio of cases currently before the Court is whether “sex” applies to sexual orientation and gender identity. If it does, gay, lesbian, and transgender employees would be afforded federal protection against workplace discrimination. Currently only 21 states, including Minnesota, have laws providing that measure of protection.

Increased FLSA Threshold for White Collar Exemptions Takes Effect at the Start of the New Year

Employers should be aware that an amendment to the Federal Fair Labor Standards Act (FLSA) will increase the salary level threshold for the white-collar employee exemption from overtime pay commencing January 1, 2020. The white-collar exemption generally applies to executive, administrative, and professional job positions, as defined under the FLSA. A final rule was issued by the federal Department of Labor (DOL) on September 24, 2019, which increases the white-collar exemption salary level from the current level of $455.00 per week to $684.00 per week (which computes to $35,568 annually). The threshold increase is significantly lower than the increase contained in a 2016 rule ($913 per week) that never went into effect. We have previously discussed in detail here the proposed rule that ultimately led to the final rule.

Overtime on Split-Day Pay — Employer Beware

A note of caution to Minnesota-based employers — federal enforcement of the Fair Labor Standards Act (FLSA) should not be your only concern when drafting employee compensation plans; the Minnesota Department of Labor and Industry is actively auditing employers in search of those avoiding their overtime requirements under the Minnesota Fair Labor Standards Act (MFLSA). This past Wednesday, the Minnesota Supreme Court upheld a million dollar compliance order issued by the Department against an employer utilizing split-day compensation plans. The court held that an employer must pay an employee at least one and one-half time for any hours worked in excess of 48 hours in a given week (overtime hits after 48 hours under the MFLSA as opposed to 40 hours under the FLSA), regardless of how that employee was compensated prior to meeting those 48 hours. Further, the court held that an employer may not exclude time and one-half pay for work performed within the employee’s first 48 hours of work when calculating the employee’s regular rate of pay.

NLRB Strengthens Employers’ Right to Bar Non-Employee Protests

The National Labor Relations Board (NLRB or the “Board”) has yet again reversed precedent and created a new employer-friendly rule regarding non-employees engaging in leafletting on an employer’s premises. In a prior 2011 decision involving the New York New York Hotel in Las Vegas, the Board had held that employers could only prohibit leafletting by non-employees on the employer’s property when such activity would “significantly interfere” with the employer’s use of the property. This was a difficult standard for employers to meet, and, fortunately for employers, they may now have greater flexibility.