Expansion of Rights for Pregnant and Nursing Workers
Late last year, President Biden signed into law the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and the Pregnant Workers Fairness Act (PWFA).
The PUMP Act takes effect April 28, 2023, and applies to both exempt and nonexempt employees. Under this new law, employers must provide all nursing mothers with reasonable breaks to express breast milk and a private location (not a bathroom) to do so. For more information, see the Department of Labor’s website.
The PWFA Act becomes effective on June 27, 2023, and requires employers to provide reasonable accommodations to workers for known limitations related to pregnancy, childbirth, or related medical conditions. See the Equal Employment Opportunity Commission’s website for more information.
Booting Up Computers
The Fair Labor Standards Act (FLSA) provides that work is compensable if it is “an integral and indispensable part of the principal activities” for which the employee is employed.
The US Court of Appeals for the Ninth Circuit (which includes Oregon and Washington, among other western states) ruled that the time the plaintiff call-center workers spend booting up their computers before they clock in is compensable.
In doing so, it overruled the lower court’s holding that “[s]tarting and turning off computers and clocking in and out of a timekeeping system are not principal activities” because the employer didn’t hire these employees “to turn computers on and off or to clock in and out of a timekeeping system.”
The Ninth Circuit, however, held that because the “employees’ duties cannot be performed without turning on and booting up their work computers, and having a functioning computer is necessary before employees can receive calls and schedule appointments,” this time is compensable under the FLSA.
The company argued that such time is de minimus (minimal), meaning that it would not need to pay staff for that time, but the appellate court did not address this issue.
Instead, the case was remanded to the lower court to determine whether time spent shutting down computers is compensable and whether the time spent booting up and shutting down the computers is not compensable under the de minimis doctrine.
No Volunteers for Chick-Fil-A
The US Department of Labor recently fined a Chick-Fil-A franchise in North Carolina for paying some staff in meal vouchers rather than wages.
On its Facebook page, the franchise had posted, “We are looking for volunteers for our new Drive Thru Express!… Earn 5 free entrees per shift….”
Although the company claimed the workers enjoyed this arrangement, it is illegal under the FLSA. Employees cannot “volunteer” their services to for-profit employers.
There are, however, some limited instances where an employer can count free meals as part of an employee’s wages, but there are a number of applicable requirements and restrictions.
No ADA Protection for an Unknown Disability
The US Court of Appeals for the Sixth Circuit recently decided a case that involved an employee with significant attendance issues resulting in discipline and a warning of possible termination.
In her final meeting with Human Resources (HR), she mentioned – for the first time – that she was severely depressed and claimed that this depression is what caused her tardiness.
She appealed her termination and, during the time her appeal was pending, she was diagnosed with both a brain tumor and persistent depressive disorder, but her appeal was denied.
She then sued her employer for disability discrimination, arguing that her employer was aware of her need for accommodations since she had sent text messages to her supervisor saying that she was sick, “having a tough time,” dealing with “a mental thing,” and had headaches and fevers.
The Sixth Circuit rejected her claim, noting that the employer was not aware of her disability until after her termination because those messages were insufficient notice of a disability and that the employee had never requested an accommodation.
She had argued that her request for a transfer to a different department was a request for accommodation, but she had never mentioned a disability, only her dislike of her department and co-workers.
Severance Agreements
Last month, the National Labor Relations Board (NLRB) ruled that an employer merely offering a severance agreement containing a broad confidentiality or non-disparagement clause
Expansion of Rights for Pregnant and Nursing Workers
Late last year, President Biden signed into law the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and the Pregnant Workers Fairness Act (PWFA).
The PUMP Act takes effect April 28, 2023, and applies to both exempt and nonexempt employees. Under this new law, employers must provide all nursing mothers with reasonable breaks to express breast milk and a private location (not a bathroom) to do so. For more information, see the Department of Labor’s website.
The PWFA Act becomes effective on June 27, 2023, and requires employers to provide reasonable accommodations to workers for known limitations related to pregnancy, childbirth, or related medical conditions. See the Equal Employment Opportunity Commission’s website for more information.
Booting Up Computers
The Fair Labor Standards Act (FLSA) provides that work is compensable if it is “an integral and indispensable part of the principal activities” for which the employee is employed.
The US Court of Appeals for the Ninth Circuit (which includes Oregon and Washington, among other western states) ruled that the time the plaintiff call-center workers spend booting up their computers before they clock in is compensable.
In doing so, it overruled the lower court’s holding that “[s]tarting and turning off computers and clocking in and out of a timekeeping system are not principal activities” because the employer didn’t hire these employees “to turn computers on and off or to clock in and out of a timekeeping system.”
The Ninth Circuit, however, held that because the “employees’ duties cannot be performed without turning on and booting up their work computers, and having a functioning computer is necessary before employees can receive calls and schedule appointments,” this time is compensable under the FLSA.
The company argued that such time is de minimus (minimal), meaning that it would not need to pay staff for that time, but the appellate court did not address this issue.
Instead, the case was remanded to the lower court to determine whether time spent shutting down computers is compensable and whether the time spent booting up and shutting down the computers is not compensable under the de minimis doctrine.
No Volunteers for Chick-Fil-A
The US Department of Labor recently fined a Chick-Fil-A franchise in North Carolina for paying some staff in meal vouchers rather than wages.
On its Facebook page, the franchise had posted, “We are looking for volunteers for our new Drive Thru Express!… Earn 5 free entrees per shift….”
Although the company claimed the workers enjoyed this arrangement, it is illegal under the FLSA. Employees cannot “volunteer” their services to for-profit employers.
There are, however, some limited instances where an employer can count free meals as part of an employee’s wages, but there are a number of applicable requirements and restrictions.
No ADA Protection for an Unknown Disability
The US Court of Appeals for the Sixth Circuit recently decided a case that involved an employee with significant attendance issues resulting in discipline and a warning of possible termination.
In her final meeting with Human Resources (HR), she mentioned – for the first time – that she was severely depressed and claimed that this depression is what caused her tardiness.
She appealed her termination and, during the time her appeal was pending, she was diagnosed with both a brain tumor and persistent depressive disorder, but her appeal was denied.
She then sued her employer for disability discrimination, arguing that her employer was aware of her need for accommodations since she had sent text messages to her supervisor saying that she was sick, “having a tough time,” dealing with “a mental thing,” and had headaches and fevers.
The Sixth Circuit rejected her claim, noting that the employer was not aware of her disability until after her termination because those messages were insufficient notice of a disability and that the employee had never requested an accommodation.
She had argued that her request for a transfer to a different department was a request for accommodation, but she had never mentioned a disability, only her dislike of her department and co-workers.
Severance Agreements
Last month, the National Labor Relations Board (NLRB) ruled that an employer merely offering a severance agreement containing a broad confidentiality or non-disparagement clause is an unfair labor practice.
Although you might think of NLRB rulings as affecting only unionized businesses, in reality, non-union employers are affected as well.
Section 7 of the National Labor Relations Act (NLRA) protects nonsupervisory employees’ rights to discuss terms and conditions of employment and to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
While not all confidentiality and non-disparagement clause are prohibited, these clauses must be narrowly drafted to make clear that they do not affect employees’ Section 7 rights.
The NLRB General Counsel has indicated that these provisions are unlawful even if they are requested by employees.
Because this ruling applies retroactively, employers should notify employees and former employees that such provisions no longer apply.
While this particular decision relates only to severance agreements, it is likely that it will be applied to other situations as well, including employee handbooks and employment agreements.
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Whether you are an employee or an employer, please feel free to contact us if you have any questions about the above or any other employment-law issues.
For more information about employment law, see Employment Law (in Plain English)®, co-authored by members of this law firm.
The book is available through Skyhorse Publishing, Amazon, Barnes & Noble, Powell’s Books, and Bookshop (an online bookstore that allows you to support your favorite independently owned bookstore).
Photo by Arlington Research on Unsplash
is an unfair labor practice.
Although you might think of NLRB rulings as affecting only unionized businesses, in reality, non-union employers are affected as well.
Section 7 of the National Labor Relations Act (NLRA) protects nonsupervisory employees’ rights to discuss terms and conditions of employment and to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
While not all confidentiality and non-disparagement clause are prohibited, these clauses must be narrowly drafted to make clear that they do not affect employees’ Section 7 rights.
The NLRB General Counsel has indicated that these provisions are unlawful even if they are requested by employees.
Because this ruling applies retroactively, employers should notify employees and former employees that such provisions no longer apply.
While this particular decision relates only to severance agreements, it is likely that it will be applied to other situations as well, including employee handbooks and employment agreements.
**********
Whether you are an employee or an employer, please feel free to contact us if you have any questions about the above or any other employment-law issues.
For more information about employment law, see Employment Law (in Plain English)®, co-authored by members of this law firm.
The book is available through Skyhorse Publishing, Amazon, Barnes & Noble, Powell’s Books, and Bookshop (an online bookstore that allows you to support your favorite independently owned bookstore).
Photo by Arlington Research on Unsplash
