December 2018 E-Update


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DOL Releases New Opinion Letters:  Varying Hourly Rates, the Ministerial Exception 

The Department of Labor (DOL) has released two new opinion letters on the Fair Labor Standards Act (FLSA). Opinion letters respond to a specific wage-hour inquiry to the DOL from an employer or other entity, and represent the DOL’s official position on that particular issue. Other employers may then rely on these opinion letters as guidance.  For more, click here.

An Avalanche of NLRB Advice Memos – Workplace Policies, the Tax Cuts and Jobs Act of 2017, Disciplinary Warnings, and Media Contacts

The National Labor Relations Board’s Office of the General Counsel (OGC) continues to issue Advice Memoranda, as it has done throughout 2018 and as we previously discussed in many of our monthly E-Updates. Eleven additional memos were issued throughout December, one of which was originally prepared years earlier, with the others prepared earlier this year. For more, click here.

Employers May Insist on Compliance with Medical Restrictions

This month, two separate federal appellate courts each held that an employer need not allow an employee to work in violation of medical restrictions imposed by a doctor.   For more, click here.


EEOC Rescinds Incentive Provisions of Wellness Regulations.

The Equal Employment Opportunity Commission has issued two final rules that remove the incentive provisions it had set forth in its 2016 wellness regulations under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.  For more, click here.

Average Hourly Wage Across a Workweek Is the Relevant Unit for Determining Pay Violation.

The U.S. Court of Appeals for the Seventh Circuit found that, for pay claims under the Fair Labor Standards Act (FLSA), the relevant unit is not wages per hour, but the average hourly wage across a workweek. In so doing, it joins the Department of Labor (DOL), as well as sister circuits – the Second, Fourth, Sixth, Eighth, Ninth and Eleventh.  For more, click here.

Excessive Absences Disqualifies Employee from Protection Under the ADA.

An employee who missed nine months of work for reasons unrelated to her disability, and then another day without medical verification, was found by the U.S. Court of Appeals for the Eighth Circuit to be unqualified to perform an essential function  of her job – regular and reliable attendance.  For more, click here.

TOP TIP: The Punishment May Fit the Crime

Wise employers know that consistency in discipline is key, but what does that mean? If two employees are involved in an altercation, must both employees receive the exact same discipline? According to a recent federal court decision, the answer is “not necessarily.”  For more, click here.