All posts by stu

DOT, Drivers, EEOC, FMCSA, Individualized Assessment

Trucking Company Didn’t Hire Driver with Bi-Polar Disorder, Sued by EEOC

DALLAS – Stevens Transport, the largest refrigerated trucking company in Texas and one of the top four largest temperature-controlled carriers in the United States has been sued by the U.S. Equal Employment Opportunity Commission (EEOC) after it refused to hire a U.S. Air Force veteran as a truck driver because of his bipolar disorder. According to EEOC’s lawsuit, Bill Brown was told that he could not be hired as a truck driver for Stevens “per company policy” because of the medication he takes to control his bipolar disorder. Brown presented a report from his medical provider indicating that he was safe to drive, but the physician with whom the company contracted to do medical examinations told him he could not be hired while on those medications.

The lawsuit alleges that there are no U.S. Department of Transportation (DOT) regulations prohibiting people on these medications from commercial truck driving, and Brown had completed an advanced truck driver training course and passed the DOT physical that is required to hold a commercial driver’s license (CDL).   The EEOC stated that Brown was a qualified applicant because of his physical exam results, his completion of training, his CDL and the positive report from his medical provider.   It was alleged that neither Stevens Transport, nor the physician it contracted with, made an individual assessment of Mr. Brown.

Under the EEOC regulations, examples of impairments that may be episodic include epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia.  If an applicant has a covered medical condition, protected by the Americans with Disability Act (ADA), as amended, then an employer must make an individualized assessment of the medical condition, as it relates to the job’s essential functions.  Accommodations would not be necessary if  the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.  The term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.

The Federal Motor Carrier Safety Administration regulations identify specific medically disqualifying conditions, and they include Hearing Loss, Vision Loss, Epilepsy and Insulin Use.  Additionally, 49 CFR Section 390.3(d) gives employers the right to adopt stricter medical standards.  Motor Carriers (companies) cannot set less restrictive standards. In addition, the employer can require the driver to perform ancillary duties as a condition of employment.

 

 

Construction, OSHA, Safety

OSHA Issues Small Business Guidance on new Silica Rule in Construction

In November, OSHA released a new Small Entity Compliance Guide for the Respirable Crystalline Silica Standard for Construction.  Earlier in March, OSHA issued a final rule lowering the permissible exposure limit to 50 micrograms of respirable crystalline silica per cubic meter of air during an eight-hour period for all industries.

The new OSHA guide is divided into sections that correspond to the major provisions (paragraphs) of the silica standard for construction.  Each section describes the provision and gives additional details to help employers better understand the requirements of the standard.  The first step for a construction employer is to determine if the standard applies to its work.  If its work is covered by the standard, an employer has two options for limiting employee exposure to respirable crystalline silica: (1) specified exposure control methods; or (2) alternative exposure control methods.

Specified Exposure Controls. Employers who choose the specified exposure controls option must fully and properly implement protections for the tasks or equipment listed in Table 1 of the standard.  Employers who fully and properly implement the controls in Table 1 do not have to assess employees’ silica exposure levels or keep employee exposures at or below the permissible exposure limit (PEL).

Alternative Exposure Controls. Employers who follow alternative exposure control methods must: (1) Determine the levels of respirable crystalline silica that employees are exposed to; (2) limit employee exposures to a PEL of 50 micrograms per cubic meter of air (50 μg/m3 ) as an 8-hour time-weighted average (TWA); (3) use engineering and work practice controls, to the extent feasible, to limit employee exposures to the PEL, and supplement the controls with respiratory protection when necessary; and (4) keep records of employee exposure to respirable crystalline silica.

All employers covered by the standard must:

  1. Provide respiratory protection when required;
  2. Restrict housekeeping practices that expose employees to respirable crystalline silica where feasible alternatives are available;
  3. Establish and implement a written exposure control plan, including designating a competent person;
  4. Offer medical exams to employees who will be required to wear a respirator under the standard for 30 or more days a year;
  5. Communicate hazards and train employees; and
  6. Keep records of medical examinations.

Read more about OSHA’s Final Rule to Protect Workers from Exposure to Respirable Crystalline Silica.

Bilingual, EEOC, Fluency, National Origin

New EEOC Guidance on National Origin Discrimination

WASHINGTON – On November 21, the U.S. Equal Employment Opportunity Commission (EEOC) has issued its updated enforcement guidance on national origin discrimination to replace its 2002 compliance manual section on that subject.  The Commission has also issued two short user-friendly resource documents to accompany the guidance: a question-and-answer publication on the guidance document and a small business fact sheet that highlights the major points in the guidance in plain language. In 2015, only 11 percent of the 89,385 private sector charges filed with EEOC alleged national origin discrimination (such as failure to hire, termination, language-related issues, and harassment cases).

Here are a few reminders from the EEOC:

Avoid exclusive use of word-of-mouth recruitment. Word-of-mouth recruitment is the practice of asking current employees to tell their family, friends, or acquaintances about job openings and to refer potential candidates to the employer. Exclusive reliance on word-of-mouth referrals may reinforce the existing racial or ethnic makeup of the workplace and should generally be accompanied by additional recruitment techniques.

An employer may not base an employment decision on an accent unless the ability to communicate in spoken English is required to perform job duties effectively and the individuals accent materially interferes with that job performance.  Further, a language fluency requirement is lawful if fluency is required for the effective performance of the position for which it is imposed. For instance, Jorge, a Dominican national, applies for a sales position with XYZ Appliances, a small retailer of home appliances in an overwhelmingly English-speaking, non-bilingual community. Jorge has very limited skill with spoken English. XYZ notifies him that he is not qualified for a sales position because his ability to effectively assist customers who only speak English is limited. Under these circumstances, XYZ’s decision to exclude Jorge from the sales position does not violate Title VII.

Bilingual Job Requirement is not Discriminatory.  As with English fluency requirements, requiring fluency in a language other than English is only permissible if it is required for the effective performance of the position for which it is imposed. For example, a business that provides services to numerous Spanish-speaking customers may have a sound business reason for requiring that some of its employees speak Spanish.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Employee Policies, HR Compliance, OSHA, Retaliation

OSHA provides Interpretation Memo of its new discipline, retaliation rule

In late October, OSHA’s Deputy Assistant Secretary, issued an interpretation memorandum designed to explain the anti-retaliation and injury reporting procedures in more detail. The interpretation offers clarification on what your organization must do in order to comply with the final rule.

With respect to reporting an injury, OSHA considers a reporting procedure to be reasonable if it is not unduly burdensome and would not deter a reasonable employee from reporting an injury or illness.  If your procedure allows employees to report workplace injuries and illnesses within a reasonable amount of time after they realize they have experienced a reportable event, and the procedure does not make employees jump through too many hoops, it will be reasonable and comply with the final rule.  In order for OSHA to issue a citation for reporting retaliation, it must demonstrate the well-established elements of retaliation.  In this context, those elements include: (1) the employee reported a work-related injury or illness; (2) The employer took adverse action against the employee (that is, action that would deter a reasonable employee from accurately reporting a work-related injury or illness); and (3) The employer took the adverse action because the employee reported a work-related injury or illness.

With drug testing,  the regulation does not prohibit employers from drug testing employees who report work-related injuries or illnesses so long as they have an objectively reasonable basis for testing, and the rule does not apply to drug testing employees for reasons other than injury-reporting.  OSHA will not issue citations under section 1904.35(b)(1)(iv) for drug testing conducted under a state workers’ compensation law or other state or federal law.  So, employers in Florida have another reason to establish a drug free workplace policy under the Florida workers’ compensation statute.  So, post-accident drug testing is permitted if all workers involved in the accident are tested in order to gain insight into the cause of the accident. But drug testing an employee whose injury could not possibly be related to drug use, such as a repetitive strain injury, would be seen as retaliation. 

With safety incentives, OSHA does not prohibit them but withholding a benefit—such as a cash prize drawing or other substantial award—simply because an employee reported an injury or illness would likely violate section 1904.35(b)(1)(iv).  However, conditioning a benefit on compliance with legitimate safety rules or participation in safety-related activities would not violate section 1904.35(b)(1)(iv). Likewise, rewarding employees for participating in safety training or identifying unsafe working conditions would not violate the rule.  However, using OSHA’s logic, an employer that goes beyond the reporting of an injury, and instead reviews the circumstances surrounding the injury or illness may objectively determine that there is a legitimate business reason for taking adverse action against the employee, or excluding the employee from a safety incentive.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

 

 

1095C form, Affordable Care Act, IRS

IRS extends deadlines for Furnishing Forms 1095-B and 1095-C in 2017

On November 18, 2016, the IRS extended the 2017 due date for providing 2016 health coverage information forms to individuals. Insurers, self-insuring employers, other coverage providers, and applicable large employers now have until March 2, 2017 to provide Forms 1095-B or 1095-C to individuals, which is a 30-day extension from the original due date of January 31.

Notice 2016-70, also extends transition relief from certain penalties (IRC Sections 6721 and 6722) to providers and employers that can show that they have made good-faith efforts to comply with the information-reporting requirements for 2016 for incorrect or incomplete information reported on the return or statement.  This Notice also provides guidance to individuals who, as a result of these extensions, might not receive a Form 1095-B or Form 1095-C by the time they file their 2016 tax returns is also abating penalties for inadvertent errors and omissions where there was a good-faith effort to comply with the reporting requirements.

The due dates for filing 2016 information returns with the IRS remain unchanged for 2017. The 2017 due dates are February 28 for paper filers and March 31 for electronic filers.

Due to these extensions, individuals may not receive Forms 1095-B or 1095-C by the time they are ready to file their 2016 individual income tax return. While information on these forms may assist in preparing a return, the forms are not required to file. Taxpayers can prepare and file their returns using other information about their health insurance and do not have to wait for Forms 1095-B or 1095-C to file.

The extensions for furnishing Forms 1095-B and 1095-C apply to calendar year 2016 reporting only and have no effect on the requirements for other years or on the effective dates or application of the pay or play provisions. Specifically, the IRS does not anticipate extending due dates or good faith penalty relief to reporting for calendar year 2017.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Employment Poster, Minimum Wage, Tipped Employees

new 2017 Florida Minimum Wage Poster published

Tallahassee, FL – The 2017 Florida minimum wage is $8.10 per hour, effective January 1, 2017. Florida law requires the Florida Department of Economic Opportunity to calculate a minimum wage rate each year. The annual calculation is based on the percentage increase in the federal Consumer Price Index for Urban Wage Earners and Clerical Workers in the South Region for the 12-month period prior to September 1, 2016.  The poster is available for free by downloading it from the Florida Department of Economic Opportunity webpage.

Employers of tipped employees, who meet eligibility requirements for the tip credit under the FLSA, may credit towards satisfaction of the minimum wage tips up to the amount of the allowable FLSA tip credit in 2003. However, the employer must pay tipped employees a direct wage. The direct wage is calculated as equal to the minimum wage ($8.10) minus the 2003 tip credit ($3.02), or a direct hourly wage of $5.08 as of January 1, 2017.

Florida Statutes require employers who must pay their employees the Florida minimum wage to post a minimum wage notice in a conspicuous and accessible place in each establishment where these employees work. This poster requirement is in addition to the federal requirement to post a notice of the federal minimum wage. Florida’s minimum wage poster is available for downloading in English, Spanish, and Creole.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

 

DOT, Drivers, Safety

DOT proposes new guidelines to address distracted drivers

WASHINGTON – The U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) released proposed guidelines this week to help address driver distraction caused by mobile and other electronic devices in vehicles. Today’s announcement covers the second phase of voluntary guidelines to address driver distraction on U.S. roads. The first phase focused on devices or systems built into the vehicle at the time of manufacture.

The proposed, voluntary guidelines are designed to encourage portable and aftermarket electronic device developers to design products that, when used while driving, reduce the potential for driver distraction. The guidelines encourage manufacturers to implement features such as pairing, where a portable device is linked to a vehicle’s infotainment system, as well as Driver Mode, which is a simplified user interface. Both pairing and Driver Mode will reduce the potential for unsafe driver distraction by limiting the time a driver’s eyes are off the road, while at the same time preserving the full functionality of these devices when they are used at other times.

You can submit written comments at Regulations.gov

Overtime, Salaried employees, Wage and Hour

Federal judge puts new DOL Salary rules on hold

On November 22, 2016, a federal judge in the Eastern District of Texas granted a motion that temporarily bars the regulations from going into effect nationwide (State of Nevada et al. v. U.S. Department of Labor, Civil Action No. 4:16-cv-00731-ALM). The injunction is expressly nationwide in scope, including and applying to states that did not join in the lawsuit. Accordingly, pending further action, the December 1, 2016 implementation date of the Final Rule is postponed and employers need not adjust salaries upward in order to continue to claim exempt status.
The injunction was entered based on the judge’s conclusion that the DOL Final Rule, raising the salary basis test to $913/week, exceeded the Department of Labor’s delegated authority. Additionally, the judge concluded that DOL did not have the authority to automatically update the minimum salary level every three years.  Stay tuned for more news on this important subject.
Fair Labor Standards Act, Overtime, Tipped Employees, Uniforms

Improper uniform deductions, tip sharing and unpaid OT at Metro Diner

An investigation by the U.S. Department of Labor’s Wage and Hour Division’s Jacksonville District Office found that Windy City Doc Holding LLC, doing business as Metro Diner, violated minimum wage and overtime provisions of the Fair Labor Standards Act.  The Wage and Hour complaint identified three violations.  First, Metro Diner made improper deductions from workers’ pay when it charged servers for their uniforms – that resulted in them earning less than the legally required federal minimum wage of $7.25 per hour in the weeks that they paid for those items.  Second, the Diner’s practice of sharing the tips of tipped employees with non-tipped workers, such as dishwashers, also contributed to the minimum wage violations for affected servers.  Third, the Diner also calculated overtime incorrectly when it based servers’ overtime rates on time and a half of their direct cash wages, rather than basing it on the full minimum wage, as required.

The maximum tip credit that an employer currently can claim under the FLSA is $5.12 per hour ($7.25 – $2.13). The following is a sample calculation for paying overtime to a tipped employee who receives $2.13 in direct cash wages.  If a tipped employee works 45 hours in a workweek. The employee’s regular rate of pay is $7.25 per hour, the applicable minimum wage.  Step 1: Use the employee’s regular rate of pay to calculate the overtime rate.  $7.25 x 1.5 = $10.88  Step 2: Subtract the appropriate tip credit from the overtime rate to achieve the adjusted rate and multiply by the number of overtime hours worked that week. $10.88 – $5.12 = $5.76. Overtime is calculated $5.76 x 5 overtime hours = $28.80 overtime pay.  Step 3: Add the employee’s straight pay plus the overtime pay to calculate total pay that week.  40 hours x $2.13 = $85.20 straight time; $85.20 straight time + $57.60 overtime = $142.80 under federal law.

Metro Diner settled the Wage and Hour complaint, agreed to comply with the FLSA and paid 59 employees a total of $154,179 in back wages.  For more information on this topic, review the Wage and Hour Division’s Fact Sheet on Tipped Employees.

Hiring, I9 Form, Immigration

Revised I9 form now available

On November 14, the new #I9 form was released by US Citizenship and Immigration Services. #HR may use the new form immediately, although the old form will remain valid through January 21, 2017.  After that date, you must use the new form.  All employees who are responsible for completing the I-9, should be trained on the new form and the changes.

Here are some important directions and guidance about the new I9 form:

  1. The new I-9 can be completed as a fillable PDF to reduce errors, however, it is not an electronic I-9.  Employers must still print the completed I-9, obtain the appropriate signatures (which are not fillable via PDF) and retain the form for the proper retention period.  So, for employers completing the form in an office environment, this version will be helpful to reduce errors and remain readable because information is typed onto the form.  However, employers can still choose to complete any or all of the form using a pen to fill out sections after the document has been printed.
  2. Documents that are partly printed and partly handwritten are acceptable.  Employers may still use an electronic version of the I-9, provided the format is updated to the current version and the I9s are retained consistent with the USCIS rules.
  3. Employers do not re-verify current employees due to the new form. Use the new I-9 only for newly hired employees and when you are required to re-verify temporary work authorization.  All previously completed I9 forms must still be retained for the proper retention period. The form must be retained for as long as the employee works for you, plus three years after their hire date or one year after their termination date, whichever is later.
  4. To download the form from the USCIS website (uscis.gov/i-9), right click on the link to the new form—“Form I-9 (PDF, 535 KB).”

Notable changes to the form itself include the following:

  • The form contains on screen instructions for each field to help with questions.
  • When completed electronically, there are prompts to ensure information is entered correctly. For example, the form will validate that the correct number of digits are entered for an employee’s Social Security number and various expiration dates. Calendars and drop-down lists also include electronic assistance. After clicking “click to finish”, errors will be noted and need to be corrected.
  • Section 1, an employee only provides other last names used, as opposed to all other names used.
  • Below an employee’s signature line, they must complete the checkbox about whether a Preparer and/or Translator was used to complete Section 1.  If applicable, multiple names can be entered into that area.
  • There is a dedicated area for including additional information (read the instructions for when this needs to be completed).
  • If using fillable version, apartment number section must be completed using “n/a” if no apartment is applicable.
  • In Section 2, employers will find a new “Citizenship/Immigration Status” field in the first line with numbers one through four. These numbers correlate directly to the employee’s selected citizenship or immigration status entered in Section 1. If you use the fillable version of the form, the corresponding digit will pre-populate. If you use a paper version, enter the corresponding digit in this field. These fields (the top line of Section 2) help to ensure that the two pages of an employee’s Form I-9 remain together.
  • If using the fillable pdf form, the employee’s name will pre-populate onto the top of page 2 also.

The USCIS has released very helpful instructions for employers on the new I9 form, including detailed guidance on the correct abbreviations for Section 2 documents. A new Handbook for Employers (M-274) will likely be released in the future.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

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