New Requirements and Considerations in Applying FMLA to Same Sex Couples

The U. S. Supreme Court ruled recently that the portion of the Defense of Marriage Act (DOMA) which denied recognition of marital status to couples of the same sex under federal law was unconstitutional. This ruling expands potential FMLA coverage as a result to same sex spouses. Employers will have to fine tune administration of FMLA leave to determine whether leave related to a same sex spouse issue should be granted. The employer will have to grant FMLA leave to an employee for legitimate, covered requests for a same sex spouse, if the affected employee resides in a state that recognizes same sex marriage.

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EEOC Flexes Muscles on Use of Criminal History —Two Lawsuits Filed

The Equal Employment Opportunity Commission (EEOC) continues to emphasize its distaste for employer criminal background checks in the employment process, especially when they are not very carefully used. The EEOC filed suits against Dollar General and a contractor running a BMW plant in South Carolina for use of information obtained through criminal background checks to reject an applicant for a job or to fire employees, claiming the practice results in discrimination against blacks because of their higher arrest and conviction rates than Caucasians.

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ADA Case—Is Arriving at Work on Time an Essential Job Function?

Look out employers.  Be careful how you apply tardiness policies or you may run afoul of the Americans with Disabilities Act (ADA).  In a case from the Second Circuit Court of Appeals,  McMillan v. City of New York (2nd Cir. March 4, 2013), the court said arriving at work on time might not be an essential function if the employee could still complete his work in a timely manner.
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Two Whammies in Undocumented Worker Case--Worker May Recover Overtime Under FLSA and Individual Directors May Be Liable

A recent Eleventh U.S. Circuit Court of Appeals case,  Lamonica v. Safe Hurricane Shutters Inc., 11th Cir., No. 11-15743, (March 6, 2013) , held that undocumented workers are still entitled to recover unpaid overtime under the Fair Labor Standards Act (FLSA).  Nine workers, including an undocumented worker, sued their former employer, Safe Hurricane Shutters Inc., its president and CEO, and two directors to recover unpaid overtime compensation. After trial, a jury found in favor of all the workers, and the trial court ordered the company and the individual defendants to pay the damages of two times the lost overtime wages.  All the defendants appealed.
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Overtime Pay Mistakes Make DOL News Releases for Two Texas Panhandle Employers

Not paying overtime correctly continues to be one of employers’ most frequent and costly traps.  The U.S. Department of Labor (DOL) has issued two press releases in recent months requiring back overtime pay by area employers for overtime violations following a DOL investigation and issued warnings to all employers to pay correctly.  The first was issued on January 22, 2013, against Diversified Interiors of Amarillo, Ltd. (“DI”), an Amarillo construction-related firm, for $76,417 back overtime wages to 63 employees, and the second was issued on February 6, 2013, against Austin Industrial Services LP, a construction company providing maintenance and construction work for the Phillips 66 oil and gas refinery in Borger, for $214,398 in overtime back wages to 13 employees.  Both situations include lessons on correctly paying overtime that employers already should know, but if they don’t, they need to learn fast.

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Finally a Win for Employer on Independent Contractor Classification!

Texas Court Finds A Real Independent Contractor

Finally, a victory for an employer on an independent contractor worker classification!  This usually is a losing battle for employers who try to classify workers as independent contractors instead of employees, thus avoiding payment of overtime, minimum wage, withholding and social security taxes, and the like. Many employers have been subjected to Department of Labor audits and private collective action lawsuits (or Texas Workforce Commission or IRS audits) over this issue and have lost.

Recently, however, the Federal District Court for the Southern District of Texas held that gate attendants who worked with a prominent provider of oilfield gate attendant services correctly were classified as independent contractors under the FLSA. Gate Guard Servs., L.P. v. Solis, 2013 U.S. Dist. LEXIS 20156 (S.D. Tex. Feb. 13, 2013).  This case is a primer for employers on what it takes to meet the heavy burden of supporting such classification of a worker.

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Facebook Pics Prove FMLA Fraud

 Finally, an employer's use of employee's Facebook postings helped the employer, instead of triggering a claim against it!
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