Prof Maurice

Here’s something to remember if you want to pay an employee a fixed weekly salary based on a regu- lar schedule that includes overtime: When the employee does work a dif- ferent schedule, you must make sure your system captures the deviation and adjusts the paycheck accordingly.

A fixed salary is fine if it’s based on regular pay for the first 40 hours and overtime pay for the remainder. However, any deviation in hours worked must be reflected in pay. Otherwise, paying just the fixed sal- ary becomes an unlawful payment method because it doesn’t take into account actual hours worked.

Recent case: Juan worked as a non- exempt salesman for four years. After a disagreement, he quit and sued, alleging that the payment method his former employer had used violated the Fair Labor Standards Act.

Juan had been paid a fixed amount every week that was supposed to rep- resent an hourly rate ($11 regular) and an overtime rate ($16.50). He argued this was an illegal arrange- ment.

But his former employer pointed out that on those occasions when Juan worked fewer hours than the 51 hours his salary was supposed to

OK to pay salary to nonexempt employees

Don’t let an employee tell you he should be excused from appro- priate workplace behavior because of a disability. Employers have the right to expect employees to treat each other with a certain level of civility. You don’t have to tolerate any abu- sive, disruptive employee.

Recent case: Robert worked as a television weather reporter for a decade before his behavior at work began to deteriorate. Soon, he was yelling at fellow reporters, missing work during major weather events and not doing assigned work like updating the station’s social media accounts with weather emergencies.

He received written instructions on how to improve.

Then Robert’s wife called in to report he would be taking time off for a medical condition. Robert was approved for FMLA leave to treat a generalized anxiety disorder and depression. He was off for several weeks and then returned to work.

His behavior didn’t change. Robert again left the station dur- ing severe weather alerts. He had another episode that co-workers described as a “meltdown,” during which he yelled and cursed at them. He continued to neglect his social

Disability doesn’t excuse worker misbehavior

(800) 543-2055 • www.theHRSpecialist.com Business Management Daily

Continued on page 2

Continued on page 2

I N T H I S I S S U E

Disabled worker obligated to try new job . . . . . 2 Slights and isolation aren’t retaliation . . . . . . . . .3 Retaliation: The adverse-action connection . . .4

Court says no to background check suit . . . . . .6 Overtime regs lawsuits filed . . . . . . . . . . . . . . . . . .7 The Mailbag: Your questions answered . . . . . . .8

Employment Law TexasHR

SPECIALIST

November 2016 Vol. 11, No. 11

House votes to delay OT rules The House of Representatives voted 246 – 177 to delay by six months implementation of new Department of Labor overtime rules that are set to take effect Dec . 1 .

Advice: Continue to plan for the new overtime rules to take effect as scheduled . The Regulatory Relief for Small Businesses, Schools and Nonprofits Act isn’t going anywhere . Only five Democrats broke ranks to join 241 Republicans in voting for the bill . A companion bill is unlikely to advance in the Senate .

Plus, President Obama vowed to veto the measure if Congress approves it . A White House statement said, “While this bill seeks to delay implementation, the real goal is clear—delay and then deny overtime pay to workers .”

A far more immediate roadblock to the new OT rules: Lawsuits filed in federal court in Texas that challenge the DOL’s authority to implement various parts of the regulations . (See “Nuts & Bolts” on page 7.)

Boss: Prove you’re HIV-free EEOC: See you in court Houston nightclub hotspot Diallo’s faces an EEOC lawsuit after the owner allegedly insisted an employee prove she was HIV-negative . The employee was fired when she refused .

In the News …

Continued on page 5

Texas Employment Law is published by HR Specialist and is edited by Michael W . Fox, a shareholder in the Austin office of Ogletree Deakins . He has more than 35 years’ experience representing employers in court and designing employment law policies . Contact him at (512) 344-4711 or Michael .Fox@ogletreedeakins .com .

Trusted compliance advice for Texas employers Editor: Michael W . Fox, Esq ., Ogletree Deakins, Austin

www.theHRSpecialist.com November 2016 • Texas Employment Law 5

In the News ... Contractors must provide paid sick leave next year Government contractors must pro- vide up to 56 hours of paid sick leave per year to employees working on federal contracts according to a final rule announced Sept. 29. The Department of Labor estimates 1.15 million em ployees will receive paid leave as a result.

The rule applies to contracts awarded on or after Jan. 1, 2017.

Employees may use leave if they or a family member are sick or need medical care. It also covers leave to deal with domestic violence, sexual assault or stalking. Employers will be able to either let employees accrue leave or front-load it in advance.

Online resource For details, see www.dol.gov/whd/govcontracts/ eo13706/.

Drug testing still legal under new OSHA reporting rule A controversial new OSHA rule cracking down on retaliation against safety whistleblowers doesn’t ban employee drug testing, according to official guidance issued in late October.

Business groups are suing to block the rule, which requires more fre- quent reporting of workplace acci- dents and injuries in addition to toughening anti-retaliation measures designed to protect employees who report working conditions that are hazardous or could cause illness.

Some employers worried that the anti-retaliation provisions, now set to take effect Dec. 1, would prohibit any kind of drug testing.

The OSHA guidance clarifies that the rule “only prohibits employ- ers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury.” Online resources To learn more, read the OSHA rule at tinyurl.com/

OSHA-reporting-rule. Additionally, read OSHA’s guidance at www.osha. gov/recordkeeping/finalrule/ interp_recordkeeping_101816.html.

Lawsuit challenges EEOC rules addressing wellness programs AARP, the seniors’ advocacy group, is suing the EEOC to stop it from issuing rules that clarify how work- place wellness programs align with federal anti-discrimination laws. The lawsuit contends the rules would ille- gally pressure employees into partici- pating in wellness programs.

The EEOC rules attempt to clarify conflicts between statutes.

The ADA and the Genetic Informa- tion Nondiscrimination Act ban most incentives for wellness participation. The Affordable Care Act explicitly allows for a 30% health insurance dis- count to encourage participation.

AARP says the EEOC rules “enable employers to pressure employees to divulge” confidential health data, violating the ADA and GINA.

The EEOC’s suit states the demand violated the ADA, which specifically bars employers from making medical inquiries that are not job related .

According to the complaint, the owner, who also manages the club, claimed to have heard from a third party that the employee was HIV- positive . Twice, he approached her about providing proof to the con- trary, informing her that failing to do so would result in termination . He followed through on the threat .

The EEOC attempted to resolve the dispute through its conciliation process, but those efforts failed . That’s when it filed suit seeking an injunction, back pay with pre- judgment interest, reinstatement (or front pay), compensatory damages and punitive damages . The amounts will be determined at trial .

Note: There seems to be an epidemic of bad judgment going around Texas regarding HIV . A simi- lar EEOC lawsuit has also been filed against an Austin nursing home .

HIV test, EEOC lawsuit (Cont. from page 1)

EEOC to focus on new economy, anti-Muslim bias The EEOC’s Strategic Enforcement Plan for the next five years includes a new focus on what the commission calls the “complex employment relationships and structures in the 21st century workplace” and renewed emphasis on combatting backlash against Muslims, Sikhs and people of Arab, Middle Eastern and South Asian descent .

An EEOC statement said, “tragic events in the United States and abroad have increased the likelihood of discrimination against these communities .”

The EEOC’s emphasis on new employment contexts is expected to address discrimination issues affecting temporary workers, staffing agencies, indepen- dent contractor relationships and the on-demand economy .

The plan, released Oct . 17, covers fiscal years 2017 to 2021 . Other EEOC enforcement priorities will include: • Eliminating barriers in recruitment and hiring • Protecting vulnerable workers, including immigrant and migrant workers, and

underserved communities from discrimination • Ensuring equal pay protections for all workers • Preserving access to the legal system for victims of discrimination and

harassment • Preventing systemic harassment .

Online resource Read the EEOC’s 2017–2021 Strategic Enforcement Plan at www.eeoc.gov/eeoc/plan/sep-2017.cfm .

Copyright of HR Specialist: Texas Employment Law is the property of Business Management Daily (a division of Capitol Information Group) and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.