Cherry Hill Courier Post (11/19/15) Phaedra Trethan

The U.S. Department of Labor’s Wage and Hour Division has ordered staffing firm Broadway Healthcare Management LLC to pay about 150 workers it placed in nursing homes $636,410 in back wages; the division also ordered the payment of $97,388 in legal and investigative costs. In a 2008 investigation, the division found that the Hackensack, NJ-based staffing firm cheated employees out of overtime pay, and the firm was then ordered to pay back wages. But the division recently found the firm had not complied with the original order and committed the same violations, resulting in a contempt finding and a new order.

Contra Costa Times (11/19/15) Rick Radin

The El Cerrito, CA, city council has voted to increase the minimum wage to $15 an hour in 2019. The minimum wage will increase to $11.60 an hour on July 1, 2016; $12.25 on Jan. 1, 2017; $13.60 on Jan. 1, 2018; and $15 on Jan. 1, 2019. Additional increases will be made annually based on changes in the Consumer Price Index.

Lexington Herald-Leader (KY) (11/19/15) Beth Musgrave

Lexington, KY’s urban county council has voted to raise the city’s minimum wage from $7.25 an hour to $10.10 an hour over the next three years. If the mayor signs the bill, the minimum wage would rise to $8.20 an hour on July 1, 2016; $9.15 on July 1, 2017; and $10.10 on July 1, 2018.

U.S. Equal Employment Opportunity Commission (11/19/15)

The U.S. Equal Employment Opportunity Commission in fiscal year 2015 secured more than $525 million for victims of discrimination in private and public workplaces. EEOC achieved record success in its conciliation of private-sector charges, with 44% of conciliations successfully resolved and 64% of systemic investigations resulting in voluntary resolutions. EEOC resolved 92,641 charges and received 89,385 charges in fiscal year 2015.

Employment Law Lookout (11/18/2015) Mark A. Lies II; Patrick D. Joyce

The U.S. Occupational Safety and Health Administration defines a powered industrial truck (PIT) as “any mobile power-propelled truck used to carry, push, pull, lift, stack, or tier materials.” PITs include forklifts, manlifts, scissor lifts, boom lifts, and motorized hand trucks. The requirements for the operation and training of PITs outlined by OSHA applies to all such equipment.

OSHA’s powered industrial trucks standard requires that “the employer shall ensure that each powered industrial truck operator is competent to operate a powered industrial truck safely…”. The standard also requires that operators receive training in the topics that are applicable to the safe operation of the truck in the employer’s workplace. Employees must be trained separately for each different type of forklift they will be using. Employers must also develop a written program to train all employees who will be required and authorized to operate PITs and actually observe the employee operating the equipment under the physical conditions at the workplace, such as aisles, ramps, and loading docks. The employer must provide a certificate stating the employee has completed the training. The employee must be retrained and recertified every three years, at a minimum, or after an accident or “near miss” which resulted from an unsafe act. Employers are advised to conduct inspections of each individual piece of equipment at the beginning of each shift, and after any maintenance has been done. The standard list includes a number of conditions under which a PIT must be removed from service, which employers should regularly review.

National Law Review (11/19/15)

With more state laws legalizing marijuana, employers may start facing challenges when trying to protect their employees from injury and to comply with federal requirements to maintain a drug-free workplace. Employers also face potentially costly litigation as case law surrounding legal marijuana develops, according to a paper by Quest Diagnostics. Quest reports that medical marijuana legalization brought forth a new phenomenon: the production of marijuana-infused foods and gadgets, which could present a special problem for employers. These modes of consumption could make it extremely difficult for employers to determine when employees are using marijuana on the job.

As marijuana use increases, workplace injuries, accidents, mistakes, and employee illnesses also could increase, which could affect the costs of companies’ liability, workers’ compensation, and health insurance. While there are various questions companies should begin asking to safeguard themselves, steps they can take to protect themselves include staying current with the changing legal landscape and adjusting workplace policies accordingly, remembering that marijuana is still illegal under federal law, and educating the workforce about the effects of marijuana, among other things.

JDSupra (11/17/15) Jamie Bachant

The Rhode Island Department of Labor and Training has stated that the misclassification of employees as independent contractors is workplace fraud. Rhode Island, similar to other states, requires employers to withhold state and federal income taxes, Social Security taxes, and Medicare taxes for each of their employees. Additionally, employers must pay taxes on wages paid to employees as well as contribute to workers’ compensation premiums. Notably, independent contractors are not afforded the same protections as employees, such as family and medical leave and protections from discriminatory employment practices under the State Fair Employment Practices Act.

Misclassifying an employee as an independent contractor may result in fines, penalties, and private lawsuits in which affected workers seek, among other things, wages, benefits, and other relief, such as reinstatement of employment, fringe benefits, seniority rights, and reasonable attorneys’ fees and costs. It is particularly important for Rhode Island employers to properly classify their workers, due to the state’s agreement with the U.S. Department of Labor regarding the coordination of law enforcement efforts to prevent misclassification. Employers should consider the totality of the working relationship to determine how workers should be classified.

Lexology (11/16/15) Michael C. Wilhelm

A recent federal court case has demonstrated that an applicant’s bilingual language abilities can serve as a legitimate, nondiscriminatory rationale for a hiring decision. In George v. Hennepin County, the plaintiff filed an age discrimination lawsuit after the employer hired a younger candidate for the position he had applied for. The younger candidate was already working at the clinic and had demonstrated the ability to work well with the office’s Spanish-speaking clients. The clinic considered her Spanish abilities sufficient enough for her to qualify as bilingual, and hired her over the 51-year-old plaintiff, who had limited Spanish language ability.

The plaintiff argued, among other things, that the clinic discriminated against her because it did not contact her to determine the extent of her Spanish language abilities, as it did for the younger candidate. The court rejected the plaintiff’s argument, reasoning that the record amply supported the clinic’s need for a bilingual hygienist. The court also found that the clinic adequately explained why it contacted the younger candidate for a better explanation of her Spanish speaking abilities based on prior experience with the younger candidate. As such, the court dismissed the claims on summary judgment.