As we enter the winter holiday season, many employers begin to contemplate paying year-end bonuses to employees.  It is a nice gesture of appreciation for work performed throughout the year and welcomed by employees.  However, the payment of bonuses continues to be an area where many employers fail to comply with the Fair Labor Standards Act (“FLSA”).  At a recent employment law webinar, the Regional Director for the Wage and Hour Division of the US Department of Labor underscored the ongoing compliance problem with employers failing to calculate the correct overtime rate.  The typical problem occurs in the calculation of the “regular rate of pay” for overtime hours worked.

Continue Reading Year End Bonuses and The Fair Labor Standards Act

The Centers for Medicare and Medicaid Services (“CMS”) issued a nationwide suspension of its vaccine mandate for health care workers.  CMS’s decision comes after two District Courts issued preliminary injunctions pausing implementation of the rule.

On December 2, 2021, CMS announced that it “will not enforce the new rule regarding vaccination of health care workers or requirements for policies and procedures in certified Medicare/Medicaid providers and suppliers…while there are court-ordered injunctions in place prohibiting enforcement of this provision.”

Continue Reading Update: Nationwide Suspension of CMS Vaccine Mandate for Healthcare Workers

On December 7, 2021, the United States District Court for the Southern District of Georgia stayed the federal contractor vaccine mandate issued by the White House via Executive Order 14042 on September 9, 2021.  This Court Order, which applies nationwide, enjoins the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.”  Previously, on November 30, 2021, a federal court in Kentucky enjoined the government from enforcing the mandate in Tennessee, Ohio and Kentucky only.  The Georgia Court expanded the reach of the order nationwide because one of the plaintiffs in the Georgia litigation, the Associated Builders and Contractors’ trade association, has members nationwide with contacts and subcontracts in every state.  Therefore, the Court concluded that “limiting the relief to only those [contracts] before the Court would prove unwieldy and would only cause more confusion.”

Continue Reading Enforcement of Federal Contractor Vaccine Mandate Halted Nationwide

The Centers for Medicare and Medicaid Services’ (CMS) vaccine mandate is, for the time being, not enforceable in New Hampshire and nine other states. On Monday, November 29, 2021, the U.S. District Court for the Eastern District of Missouri granted a preliminary injunction blocking the mandate.

What is the CMS Mandate?

The CMS vaccine mandate requires that select healthcare workers at facilities receiving Medicare and or Medicaid funding be fully vaccinated by January 4, 2022.

Continue Reading CMS Vaccine Mandate Halted in New Hampshire

Another year, another list.  I doubt anyone expected at the end of 2020 to still be talking about social distancing, mask wearing, and virtual holiday gatherings. Yet, here we are. In preparing to write this post, I thought about what we have written in the past about making resolutions, plans for new initiatives, and reinvigorating compliance efforts.  This year, my list of  to do’s looks a bit different than in years past. To be sure, some old favorites are back, but I challenge us all to think a bit bigger and a good way beyond our usual list of projects.  The times demand it.  So hit ground running in 2022, HR Pros, and try on some of the following!

Continue Reading Closing Out Another Year and Looking Forward to 2022!

On November 12, 2021, the Fifth Court of Appeals stayed the enforcement of the OSHA Emergency Temporary Standard (ETS) requiring employers with 100+ employees to adopt a policy mandating employees to show proof that they have been fully vaccinated or submit to weekly testing starting in January 2022.

The Order found that the OSHA ETS is “fatally flawed” in that it is both “overinclusive,” since it applies to all industries based on size, without any analysis of the specific risks applicable in each industry, and “underinclusive,” since it only applies to employers with 100+ employees, and does not attempt to protect employees who work for small employers.  The Court further found that “the mere specter of the [OSHA] Mandate has contributed to untold economic upheaval in recent months” and that in enacting this ETS, OSHA had exceeded its powers and violated “the constitutional structure that safeguards our collective liberty.”

Continue Reading Fifth Circuit Blocks OSHA’s Emergency Temporary Standard for Employers with 100+ Employees – Stay Tuned for More Court Rulings

President Joe Biden announced on September 9, 2021 a new rule requiring employers with at least 100 employees to mandate that their workers be vaccinated against COVID-19 or undergo weekly testing. The president also signed orders indicating that most federal employees and federal contractors, as well as most health care workers across the country, must be vaccinated.  Previously some private employers enacted policies requiring vaccines of their workers, but these decisions were made primarily based on workplace dynamics and culture.  With broader government imposed mandates in the offing, employers are asking more questions than before about how to handle mandating vaccines in a polarized workforce in a tight labor market.

Continue Reading The Challenges of Vaccine Mandates

Again, one of the mighty has fallen.  Super Bowl winner, ESPN commentator, and the highest paid coach in the NFL follows the path of Harvey Weinstein, Matt Lauer, Andrew Cuomo and so many others in losing his job, his reputation, and probably his career due to abhorrent behavior which remained under wraps for years.  The downfall came after the Wall Street Journal leaked an email from 2011 wherein Gruden referred to the executive director of the NFL Players’ Association, an African American, with an insulting racial slur while communicating with an NFL team executive.

Continue Reading Lessons Learned from the Latest NFL Scandal: Does the Downfall of Jon Gruden Teach Us Anything New?

On Thursday, September 29, 2022, Massachusetts extended the paid sick leave program until April 1, 2022. The reason for taking such leave have also been broadened. Irrespective of the number of full-time employees an employer may have, the paid sick leave mandate requires Massachusetts employers provide another 40 hours of paid time off in order to deal with several COVID-19 related issues. Continue Reading Massachusetts Extends COVID-19 Emergency Sick Leave Into 2022

Title VII requires employers to prevent sexual harassment in the workplace.  When the statute was initially passed in 1964, there was no guidance from the EEOC on how employers were supposed to accomplish this goal.  There was no caselaw or national #metoo movement.  In contrast, today, there are well-established examples of what constitutes inappropriate physical contact, speech and other interactions in a workplace.  While not all poor behavior can be avoided, employers can no longer hide behind a claim that “I did not realize the extent to which the lines had been redrawn” as recently proclaimed by Governor Cuomo.  Employers must be knowledgeable about this law and proactively implement policies and protocols to prevent harassment from occurring in their workplace.

Continue Reading Five Takeaways for Private Employers Following the Cuomo Sexual Harassment Investigation