Q. Are there any Equal Pay Acts that apply specifically to employers in Massachusetts and New Jersey?
A. On July 1, 2018, an updated equal pay law becomes effective in Massachusetts, referred to as “MEPA” (Massachusetts Equal Pay Act). MEPA covers nearly all Massachusetts employers, irrespective of size, and most employees, including full-time, part-time, seasonal, per-diem, and temporary employees. Employees who telecommute to a primary place of work in Massachusetts also are covered.
Q. Can my Company use an applicant’s salary history to set their current pay rate?
A. Not for employees in the Ninth Circuit Court of Appeals (covering California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington). In a case decided the day before Equal Pay Day, the Ninth Circuit
Q. I heard that the U.S. Supreme Court just issued a ruling finding that auto service workers are exempt from overtime pay. My company is not in the automobile industry. Will this opinion apply to us?
A. The U.S. Supreme Court issued an opinion this week in Encino Motorcars, LLC v. Navarro, finding that auto service workers – those employees who interact with customers and sell them services for their vehicles – are exempt from overtime pay under the Fair Labor Standards Act (FLSA). While the decision directly impacts this small category of jobs, the opinion will have a much more far-reaching impact, since the Court rejected long-standing precedent that exemptions must be construed narrowly against the employer.
Q. What can my company do to reduce the threat that one of our employees may cause a cyberattack?
A. In September 2017, Equifax announced that hackers had gained access to the confidential information of more than 145 million consumers, almost half of the U.S. population. Recent cases suggest that employers could be subject to liability when one of their employees causes a data breach by either knowingly or negligently revealing sensitive employee or customer data. In March 2016, for example, Snapchat announced that someone posing as the company’s chief executive officer obtained employee payroll data about 700 employees. More than seven other companies were tricked by similar phishing attacks that same year.
Q. Has the #MeToo Movement led to any changes on how companies settle harassment complaints?
A. While there are numerous legislative initiatives on the horizon intended to change how employers handle harassment complaints in light of the #MeToo Movement, the most significant federal change is a little known revision to the Tax Code recently enacted.
Q. My company wants to target on-line recruitment ads for certain jobs to specific age groups. Is that legal?
A. In most circumstances, the answer is no. Unless an employee’s age is a bona fide occupational qualification (i.e., hiring an applicant under a certain age is reasonably related to an essential operation of the business), a policy targeting recruits under an age limit likely will be considered age discrimination.
Q. I am the HR Manager for a non-union workplace and we are investigating an issue involving employee misconduct. One of the employees whom I want to interview has requested that a coworker attend the interview as his “representative.” Can we say no?
A. Yes!
While the NLRB has flip-flopped on this issue several times over the past few decades, the current ruling is that employees in non-union workplaces do not have so-called “Weingarten” rights to representation during company interviews.
Q. Can I discharge an employee if I believe that he or she is misusing FMLA?
A. According to a recent Third Circuit opinion, an employer’s honest belief that its employee misused FMLA leave is sufficient to defeat an FMLA retaliation claim, even if the employer was mistaken.
In Capps v. Mondelez Global, LLC, 847 F.3d 144 (3rd Cir. 2017), the company granted the employee intermittent FMLA leave for flare-ups as a result of hip replacement surgery. On February 14, 2013, Capps took intermittent leave. That evening, he went to a pub and became severely intoxicated. On his way home, Capps was arrested for driving while intoxicated and spent the night in jail. He was scheduled to work the next afternoon, but called out again. Approximately six months later, Capps pled guilty to the DWI charge and served 72 hours in jail immediately following the guilty plea hearing.
Q: My Company wants to institute a drug testing policy that would automatically disqualify an applicant for employment if they test positive for illegal drugs, including medically-prescribed marijuana. Is this legal?
A. The law regarding the responsibility of employers to accommodate medical marijuana use continues to evolve as more states pass laws allowing for marijuana use for medical and recreational reasons. In Pennsylvania, for example, the law is silent as to whether an employer can rely upon a positive drug test as a reason to reject the applicant for employment. However, the statute lists specific areas in which employers may prohibit employees from working while under the influence of marijuana – operating or controlling government-controlled chemicals or high-voltage electricity, performing duties at heights or in confined spaces; and performing tasks that threaten the life of the employee or his/her coworkers. By implication, outside these specified areas, employers may be required to accommodate marijuana use, so long as it does not occur at work.
Q. My Company would like to have all applicants for employment submit to a pre-employment physical examination to ensure that they are fit for the position. Is this allowable?
A. Employers may require an applicant to submit to a pre-employment physical examination, but only after a conditional offer of employment has been made, and even then only under the following conditions: