Fifth Circuit Issues Timely Reminder Regarding the Importance of Employers Maintaining Accurate Wage Records (US)

A recent decision from a federal appeals court highlights the perils for employers associated with lax recordkeeping of employee work hours and wage information.

It is well-established that every employer covered by the Fair Labor Standards Act (“FLSA”) is required to keep certain records for each covered non-exempt worker (i.e., those that are paid on an hourly basis and that perform duties other than professional, administrative, executive, outside sales, and certain computer-related positions). Although there is no required form for the records, they must include accurate information about the employee and data about their hours worked and wages earned. There are a variety of acceptable timekeeping methods employers can use to keep track of the hours worked by their employees. For example, they may use a time clock or they may require their workers to record their time on company timesheets. Employers may use any timekeeping method they choose so long as it produces complete and accurate records. Further, if non-exempt or exempt employees do compensable work from home or in the field, they must be compensated for that work and non-exempt employees’ hours must be recorded consistent with FLSA recordkeeping requirements.

On February 9, 2021, the United States Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana, and Mississippi) reaffirmed the importance of complete and accurate recordkeeping, holding that an employer’s spotty wage records were not enough to overcome workers’ testimony of unpaid overtime wages. In Dep’t. of Labor v. Five Star Automatic Fire Protection LLC, the U.S. Department of Labor (“DOL”) sued Five Star Automatic Fire Protection LLC, a fire-sprinkler installation and service company based in El Paso, Texas, alleging that crews who typically worked for clients offsite were not being compensated for work they performed prior to and after their shifts. Continue Reading

H-1B Cap Season Opens March 9: Random Cap Registration Selection Returns For FY2022 (US)

Applying for a VisaU.S. Citizenship and Immigration Services (USCIS) has announced that the initial registration period for the fiscal year (FY) 2022 H-1B cap will open at noon Eastern on March 9 and run through noon Eastern on March 25, 2021.  USCIS intends to notify selected registrants by March 31st and permit filings from April 1, 2021. Continue Reading

Belgium: paid time off takes pain out of employee vaccinations

COVID-19 Vaccine

In order to ensure that as many people as possible are vaccinated, the trade unions and the employers’ organisations in the National Labour Council have agreed that employees will be allowed to take the necessary time off to be vaccinated.

If enough vaccines are available, at-risk patients will be vaccinated from April onwards and the general population from June onwards. These vaccinations will be carried out in special vaccination centres. Every citizen will receive a designated time slot and it is likely that the time slot that many employees get will fall during working hours.

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Arizona Expands State Law Employment Protections for Pregnant Workers (US)

Arizona State Capitol BuildingArizona employers are now expressly prohibited by state law from discriminating against employees on the basis of pregnancy or childbirth. On January 28, 2021, the Arizona Legislature passed, and on Thursday, February 4, 2021, Arizona Governor Doug Ducey signed into law, HB 2045, which amends the state civil rights statute to clarify that existing statutory prohibitions on sex-based discrimination also preclude discrimination on the basis of pregnancy and childbirth. Accordingly, Arizona becomes the 28th state to preclude pregnancy discrimination expressly under state law.

Ariz. Rev. Stat. § 41-1461, et seq. already prohibits discrimination by covered employers (i.e., employers that employ fifteen (15) or more employees) “because of sex” or “on the basis of sex.” Following the passage of HB 2045, the Arizona Civil Rights Act (ACRA) – Arizona’s state civil rights statute – now expressly states that its prohibition on discrimination “because of sex” and “on the basis of sex” includes discrimination “because of or on the basis of pregnancy or childbirth or related medical conditions.” The ACRA also now expressly provides that “[w]omen who are affected by pregnancy or childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work[.]” Continue Reading

President Signs Three Executive Orders Seeking Broad Changes to US Immigration Policies; Administration Delays Changes to H-1B Cap Lottery

Applying for a VisaThe following is a summary of the President’s three new immigration-related executive orders issued on February 2, 2021:

Executive Order on the Establishment of Interagency Task Force on the Reunification of Families

The first executive order creates an interagency task force, presided by the Secretary of Homeland Security, to reunify parents and children separated by the prior administration. The action also revokes the Trump administration’s executive order that sought to justify separating children from their parents and describes that administration’s former “Zero Tolerance” policy, by which it separated families at the U.S. -Mexico border, as a “human tragedy.” Continue Reading

Biden-Led Department Of Labor Pulls The Plug On Voluntary Wage And Hour Compliance Program (US)

In early 2018, we reported [see here and here] that the U.S. Department of Labor (DOL) had launched a pilot program to encourage employers to voluntarily report violations of the Fair Labor Standards Act (FLSA) minimum wage and overtime requirements. Employers who opted into the self-reporting pilot program, called the Payroll Audit Independent Determination (PAID) program, would disclose the basis of the violations, and agree to promptly pay back wages to employees, and thereby avoid the risk of litigation, liquidated damages (an amount equal to the unpaid wages assessed against employers in enforcement actions), penalties, and fines. The DOL would then distribute the past-due wages to current and former employees to whom the payments were owed. If employees accepted the payments, they would be required to waive their right to pursue private legal action for the time period covered by the payment, but employees could forego the back payment and preserve their right to individual action. Continue Reading

Belgium – Working from home: put it on paper!

Working from Home in BelgiumWe already had a legal framework for recurrent home working and a separate one for “occasional” home working, but up until now there was no clear guidance on the mandatory home working imposed by the Belgian government as a measure to combat the pandemic.

Clarity at last, however, as the National Labour Council voted through Collective Labour Agreement nr. 149 on 26 January to address specifically the topic of home working due to the Covid-19 crisis.

The new CLA is suppletive in the sense that it will only apply to companies which did not already have home working arrangements (collective or individual) in place on 1 January 2021.

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New EEOC Proposed Wellness Plans Regulations – Trouble for Participatory Wellness Plans (US)

The Equal Employment Opportunity Commission (“EEOC”) recently proposed regulations pertaining to employer wellness programs that, as will be explained below, may concern employers that have “Participatory” wellness plans. The proposal can be found at[1]

Current Wellness Plan Rules under Other Laws

To understand the EEOC’s proposal, one must first take note of the other pre-existing wellness plan rules. In general, those rules are found in ERISA[2] and the Public Health Service Act,[3] and apply to employee group health plans.

Beginning in 1996 with the passage of HIPAA,[4] federal law has prohibited employer group health plans from discriminating against employees (and covered dependents) based on “health status-related factors.”  Nevertheless, certain types of wellness plans are permitted.

Subsequent DOL regulations[5], with modifications made by the Affordable Care Act,[6] established rules that regulate wellness plans, categorizing them as:

  • Participatory Plans,
  • Activity Based Plans, and
  • Outcome Based Plans

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President Biden Signs Executive Order Extending Workplace Protections Against COVID-19 (US)

One of President Biden’s first acts in office was to sign an Executive Order (EO) on January 21, 2021 aimed at increasing the safety and health of U.S. workers, particularly healthcare and other essential workers, against the continuing COVID-19 pandemic. To that end, President Biden instructed the Secretary of the Department of Labor (DOL), through the Assistant Secretary of Labor for Occupational Safety and Health, to issue revised guidance to employers on pandemic-related workplace safety, such guidance to be issued no later than February 4, 2021. The President also directed the Assistant Secretary of Labor to consider and, if warranted, issue by March 15, 2021, any emergency temporary standards necessary to protect the workplace, such as requiring the wearing of masks in the workplace. Continue Reading

Biden Immigration Activity on Day One: Taking Down the Walls (US)

Applying for a VisaWith the stroke of a pen, President Biden immediately commenced the deconstruction of the Southern Border wall and several other immigration policies of the prior administration, including the pre-Covid travel bans. Here is a summary of the President’s immigration-related executive actions issued during his first days in office.

Revoking the Pre-Covid Travel Bans

Entitled Presidential Proclamation on Ending Discriminatory Bans on Entry to the United States, this proclamation revokes Executive Order 13780 of March 6, 2017Proclamation 9645 of September 24, 2017Proclamation 9723 of April 10, 2018; and Proclamation 9983 of January 31, 2020, the so-called “Muslim Travel Bans” which collectively banned certain nationals of Burma (Myanmar), Chad, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen from traveling or immigrating to the United States. The proclamation directs the Secretary of State, within 45 days, to deliver plans for expeditiously adjudicating any pending visa applications and re-adjudicating applications previously denied pursuant to the travel bans. In addition, the proclamation calls for the Secretaries of Homeland Security and State, in consultation with the Director of National Intelligence, within 120 days, to review current screening and vetting procedures for immigrant and nonimmigrant entries, including the use of social media identifiers, and provide recommendations to improve screening and vetting processes. Continue Reading