The Wage and Hour Division of the U.S. Department of Labor (DOL) held public listening sessions on October 30, 2018 to gather views on the Part 541 white collar exemption regulations, the 2016 “Overtime Rule.” Sessions were held in Atlanta, GA, Seattle, WA, Kansas City, MO, Denver, CO, Providence, RI, and Washington DC. A review of the actual transcripts reveals that many different interests presented comments, including human resource professionals, small business, nonprofits, employees, employers, attorneys, and large businesses. Full renditions of the transcripts by city can be found here.

The DOL posed these questions for addressing at the Listening Sessions: Continue Reading Key Takeaways from the Recent Overtime Rule Listening Sessions

Haynsworth Sinkler Boyd’s Employment Law Group is pleased to announce the schedule for our upcoming Employment Law Seminars. HR professionals are invited to join us for a program that will cover a number of current topics in employment law. These complimentary seminars have been submitted for 3.0 hours of SHRM, HRCI and CLE continuing education credits.

Our speakers will present on the following topics:

  • Tips on Implementing a Different Approach to Harassment & Discrimination in the Workplace
  • Aging Workforce
  • Immigration Law Update
  • Critical Conversations: Employee Assistance Programs
  • Concerted Activity & Other News from the NLRB
  • Key Elements to Creating a “Culture of Safety”
  • Data Theft: What to Do When an Employee Steals Company Information

Join us for a seminar in a location near you:

October 23 – North Charleston
1:00 pm – 5:00 pm
Click here for agenda, details and to register.

October 24 – Columbia
8:30 am – 12:00 pm
Click here for agenda, details and to register.

December 4 – Myrtle Beach
8:30 am – 12:00 pm
Click here for agenda, details and to register.

December 5 – Florence (co-sponsored with Pee Dee SHRM)
8:30 am – 12:00 pm
Click here for agenda, details and to register.

Please contact Keely Yates for additional information.

It is no secret that more U.S. workers are electing to put off retirement and remain in the workforce longer. Given the current labor shortage (lowest unemployment rate in 18 years), this is great news for companies as retaining experienced workers decreases turnover cost and provides immeasurable value in other areas of corporate performance. However, there is a tendency among some companies to “get younger” since experienced workers are often the most highly compensated employees and the newer crop of workers are digital natives that tend to be more technologically fluent.

Given this context, it is unsurprising that age discrimination has become the hot-button workplace discrimination issue in the media (notwithstanding sexual harassment, of course). On June 26, the U.S. Equal Employment Opportunity Commission (“EEOC”) released a report titled The State of Older Workers and Age Discrimination 50 Years After the Age Discrimination in Employment Act. A few of the key takeaways:

  1. Statistics suggest age discrimination is pretty common in today’s workforce. 90% say it is somewhat or very common, and more than 60% of workers 45 and older admitted to witnessing or experiencing age discrimination.
  2. Certain groups are particularly vulnerable – women, minorities and tech workers. In the technology industry, workers are sensitive to the fact that they may be replaced by younger workers – more than 40% of older tech workers are worried about losing their job because they fear age is a liability to their career.
  3. Older workers that lose jobs have much more difficulty finding a new job. This is important because if a worker remains out of work, they may be more likely to institute litigation against their former employer for discrimination.

South Carolina employers are advised to think critically when making decisions about your more experienced workers. Perhaps it is time for your organization to rethink outdated company policies about when a worker should retire, and rethink traditional “succession planning” measures that often disadvantage experienced workers. As more millennials enter the workforce, now is the time to think about how you onboard and train employees regarding stereotypes of the older generation.

The U.S. Department of Homeland Security (Department) recently issued a notice proposing to terminate the international entrepreneur parole program (IE Program) in accordance with Executive Order 13767, entitled Border Security and Immigration Enforcement Improvements, because the IE Program represents an overly broad interpretation of the Department’s parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining talented international entrepreneurs. Continue Reading Proposed Termination of International Entrepreneur Parole Program

According to the Centers for Disease Control (“CDC”), the United States experiences a flu season each year. With this year’s flu season considered one of the worst since the 2009-2010 pandemic, many employers wish to implement policies to protect the workplace and wonder whether they can implement policies mandating vaccination for their employees. This desire is particularly present in healthcare because those employees are charged with protecting patient safety and more often exposed to patients with compromised immunity. Continue Reading Employer Policies Involving the Flu Vaccine and Discrimination Under Title VII

Perry MacLennan, Chris Gantt-Sorenson and Denny Major
Perry MacLennan, Chris Gantt-Sorenson and Denny Major

Haynsworth Sinkler Boyd recently hosted our annual Employment Law Seminars across South Carolina. These complimentary seminars educated Human Resource professionals on recent employment law updates and changes.

Here is a brief summary of the presentations from our seminars.

LGBTQIA: What Human Resource Professionals Need to Know by Chris Gantt-Sorenson

  • The 4th Circuit Court of Appeals has already stated in dicta that it would recognize a claim alleging gender discrimination or harassment under Title VII for any employee who has been discriminated against on the basis of their gender identity, gender expression, sexual orientation or sexual preference.
  • OSHA states, “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”
  • OSHA reports 22% of 700,000 transgender employees surveyed indicated they were denied access to gender appropriate restrooms.
  • OSHA’s Sanitation Standard 1910.141(c)(1)(ii) requires employers to provide toilet facilities that are close to their workspace for each gender. OSHA also issued guidance recommending that employers offer single occupancy, gender neutral facilities rather than gender specific. However, if an employer could not do so, OSHA advised employers should provide lockable stalls in each restroom.

Wage and Hour Update by Denny Major

  • The Department of Labor has issued a request for information to solicit input on the salary level test used to help determine if an employee meets the executive, administrative, or professional exemption for the FLSA’s overtime requirement. The DOL has indicated that it intends to use the comments to develop a new proposed regulation regarding this exemption. For now, the 2004 salary level test ($455/week) remains in effect.
  • In recent opinions, the Fourth Circuit Court of Appeals, which is the federal court of appeals that covers South Carolina, has taken a fairly broad view of who is an employee versus an independent contractor and who constitutes joint employers under the FLSA. In a recent case, the Fourth Circuit, after examining several fact specific factors, determined that an exotic dancer was an employee of an exotic dance club rather than an independent contractor. In another recent case, it held that a general contractor was a joint employer over the employees of the contractor’s drywall subcontractor. While these are very fact specific inquiries, it suggests a trend in the way the Fourth Circuit is treating these cases.

Politics in the Workplace by Perry MacLennan

  • The Problem: According to a recent survey from BetterWorks, 50% of respondents have witnessed a political conversation turn into an argument at work (63% of millennials say the same). Thirty percent of respondents say they are less productive since the election due to the political environment. Employees are increasingly taking to social media to express their political beliefs and opinions, sometimes crossing the line into harassment and discrimination, or embarrassing the company and creating a public relations nightmare.
  • The Challenge: Foster a cooperative, productive, inclusive work environment that does not discourage workers from having their own opinions and does not create a workplace that feels more like a dictatorship than a democracy. Develop policies and procedures that strike a balance between being strong enough to justify discipline in certain situations, while not being overly broad, which are tough to enforce and could be illegal.
  • The Solution: Review your current policies and procedures (Social Media Policy, Code of Conduct Policy, etc.) to determine if your organization is compliant with the National Labor Relations Act and other laws governing the regulation of employee speech in the workplace. Make sure the policies emphasize mutual respect, civility, and productivity at work. Finally, include a reminder that anti-discrimination and other company policies apply to an employee’s outside activities, including social media posts.

Immigration Law Update by Garrett Steck and Suyash Raiborde

  • Immigration is seeing and will likely continue to see major changes under the current Administration.
  • Internal immigration compliance enforcement has increased in recent months.
  • The government may eliminate several visa programs, and significantly alter existing visa programs.

Recent Trends with the ADA

  • Both the EEOC and the US District Court of South Carolina have taken the position that an employee’s request for a service animal may be a reasonable accommodation under the ADA even though Title III of the ADA which governs employers does not specifically address service animals.
  • The failure to engage in the interactive process with the employee once a request for a service animal as a reasonable accommodation is made will most likely result in a violation of the ADA and subject the employer to liability for failing to engage in the interactive process.
  • The EEOC’s recent position on service animals as well as recent court decisions do not foreclose the possibility that the EEOC or the courts would find that an emotional support animal may be a reasonable accommodation under the ADA. If a request for an emotional support animal as a reasonable accommodation is made, employers should engage in the interactive process to determine whether the animal is reasonable under the circumstances.
  • Both the EEOC and the courts take the position that leave may be a form of reasonable accommodation under the ADA. Employer’s may have to modify existing leave policies to accommodate an employee’s request for accommodation.

DOR and the Unemployment Insurance Tax Rate by Demetrius Pyburn

  • Respond timely, adequately and effectively to SCDEW’s request for information regarding the reason the employee no longer works for the company.
  • Implement clear employee policies and keep records of any trainings, orientation and counseling.
  • Understand the Unemployment eligibility and appeals process to prevent improper payment and higher tax rates.

Stay on top of all employment law issues and subscribe to our SC Employers’ Blog.

And don’t miss next year’s seminar. Sign up for HSB emails and be the first to know about upcoming events.

In a decision with potentially huge ramifications for the construction industry, the Fourth Circuit Court of Appeals found that employees of a framing and drywall subcontractor were also the employees of a general contractor for purposes of federal employment laws. Therefore, contractors might find themselves on the hook for their subcontractors’ violations of the law, even if the general contractor had nothing to do with the alleged violation.

In Salinas v. Commercial Interiors, Inc., 848 F.3d 125 (2017), several employees of J.I. General Contractors, Inc. (“Subcontractor”) filed a lawsuit against Subcontractor and a general contractor, Commercial Interiors, Inc. (“GC”) for Subcontractor’s failure to pay the employees proper overtime wages. The issue before the Court was whether GC was a “joint employer” of Subcontractor’s employees. Since Subcontractor was defunct with no money to pay a judgment, the GC was their only means of recovery.

The trial court dismissed the case against the GC because the GC and Subcontractor entered into a “traditionally … recognized,” legitimate contractor-subcontractor relationship that did not attempt to avoid the law. This rationale is consistent with industry expectations that when a general contractor hires a subcontractor to do work, although there is some supervision required of the subcontractor, the general contractor does not take on legal responsibility for the subcontractor’s workers.

However, on appeal, the Fourth Circuit found that the GC was a joint employer and stated that the legitimacy of the business relationship was not the most important factor. Instead, a general contractor (or any other company) is a joint employer when (1) it shares responsibility for the terms and conditions of a worker’s employment, and (2) the two entities’ combined influence renders the worker an employee rather than an independent contractor.

The factual allegations supporting the Court’s decision were as follows:

  • GC threatened to fire a Subcontractor employee on at least one occasion;
  • On some jobs, Subcontractor employees worked directly for GC, blurring the distinction between the two;
  • GC had close control over the schedules of the Subcontractor’s employees; and
  • Subcontractor’s employees wore GC’s clothing/logo while on site.

What does all this mean? This decision is scary for general contractors because it could signal the beginning of the end of the legal distinction between your employees and your subcontractor’s employees on a particular job. However, the more likely (and hopeful) explanation is that this case is an outlier because of the particular facts.

Regardless, there are a couple of important takeaways for construction companies:

  • Make sure your contracts are airtight with the correct language on the independent contractor relationship, strong indemnification provisions, and robust insurance requirements; and
  • Avoid actions like those taken by the GC in the Salinas case that could be interpreted as controlling the subcontractor’s workers.
Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming Employment Law Seminars.
HR professionals are invited to join us for a program that will cover current issues in Employment law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit with CLE, SHRM and HRCI credit available.
Our attorneys will present on the following topics:
  • LGBTQIA: What Human Resource Professionals Need to Know
  • Immigration Law Update
  • Politics in the Workplace
  • Wage & Hour update
  • Recent Trends with the ADA
  • DOR & the Unemployment Insurance Tax Rate
Join us for one of our seminars in a location near you:
November 30 – Hood Center, Rock Hill
8:30 am – 12:00 pm
Click here for details and to register.
December 5 – Marina Inn Grande Dunes Myrtle Beach
8:30 am – 12:00 pm
Click here for details and to register.
December 6 – SiMT Florence 
8:30 am – 12:00 pm
Click here for details and to register.
Please contact Keely Yates for additional information.
Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming Employment Law Seminars.
HR professionals are invited to join us for a program that will cover current issues in Employment law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit with CLE, SHRM and HRCI credit available.
Our attorneys will present on the following topics:
  • LGBTQ: What Human Resource Professionals Need to Know
  • Immigration Law Update
  • Politics in the Workplace
  • Wage & Hour update
  • Recent Trends with the ADA
  • DOR & the Unemployment Insurance Tax Rate
Join us for one of our seminars in a location near you:
October 24 – North Charleston DoubleTree Hotel
1:00 – 5:00 pm
Click here for details and to register.
October 25 – HSB Columbia Conference Center
8:30 am – 12:00 pm
Click here for details and to register.
November 30 – Hood Center, Rock Hill
8:30 am – 12:00 pm
Click here for details and to register.
December 5 – Marina Inn Grande Dunes Myrtle Beach
8:30 am – 12:00 pm
Click here for details and to register.
December 6 – SiMT Florence 
8:30 am – 12:00 pm
Click here for details and to register.
Please contact Keely Yates for additional information.