December 2020 E-Update


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Electronic Posting of Required Workplace Notices? The DOL Provides Guidance

In our “new normal,” the U.S. Department of Labor is dealing with how to help employers comply with legal obligations under laws that never contemplated these conditions. The Wage and Hour Division of the DOL has just issued a Field Assistance Bulletin (FAB) No. 2020-7 that provides guidance on the issue of whether required workplace postings under various employment laws may be done electronically.  For more, click here.

Telemedicine and the FMLA – The DOL Weighs In

Even before the pandemic, employers were questioning whether a telemedicine visit could constitute a visit with a health care provider for purposes of the Family and Medical Leave Act. In a Field Assistance Bulletin, No. 2020-8, the Wage and Hour Division of the U.S. Department of Labor offered guidance on this issue.  For more, click here.

DOL Issues Final Rule on Tipped Employees – Mandatory Tip Pools and Related Duties

On December 22, 2020, the U.S. Department of Labor announced a final rule that revises its tipped employee regulations to conform with amendments that were made to the Fair Labor Standards Act by the Consolidated Appropriations Act of 2018 (the “CAA”), which we discussed in our March 2018 E-Update. For more, click here.

NLRB Finds Employee Civility, No-Recording, and Confidential Information Rules to Be Lawful

In BMW Manufacturing Co., the National Labor Relations Board (the Board) held that several work rules found in the employer’s employee handbook did not violate Section 8(a)(1) of the National Relations Act (NLRA), which prohibits employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights to engage in concerted activities for their mutual aid and protection.  For more, click here.


Employers and Employees Can Contractually Agree to Shorter Claims Periods

The U.S. Court of Appeals for the Fourth Circuit stated that, “[a]s a general rule, statutory limitations periods may be shortened by agreement, so long as the limitations period is not unreasonably short and the statute at issue does not prohibit a shortened limitations period.” For more, click here.

Suspicious Timing of Performance Management Supports FMLA Retaliation Claim

An employee’s claim of retaliation under the Family and Medical Leave Act was supported by the suspect timing of her employer’s performance management activities following her notice to management of her need for leave in the future, according to the U.S. Court of Appeals for the Eleventh Circuit. For more, click here.

Diving Into the (Tip) Pool – Fourth Circuit Addresses Tipped Employee Issues

The U.S. Court of Appeals for the Fourth Circuit (which covers Maryland, Virginia, West Virginia, and the Carolinas) held that automatic gratuities or service charges are not tips, but may be considered commissions that may be used to satisfy the overtime obligations under the Fair Labor Standards Act. The Fourth Circuit also addressed the composition of tip pools in Tom v. Hospitality Ventures, LLC. For more, click here.

2nd Circuit Provides Guidance on Questioning of Employees During Work Stoppage

The U.S. Court of Appeals for the Second Circuit provided guidance to employers on the parameters of lawful questioning of employees during a work stoppage.  For more, click here.

And Exactly How Does Your Own Shredder Help You Perform Your Essential Job Functions?

Reinforcing a perhaps obvious point, the U.S. Court of Appeals for the Seventh Circuit recently reiterated that, under the Americans with Disabilities Act, the employer need provide only accommodations that are necessary to enable the employee to perform their essential job functions.  For more, click here.

EEOC Provides New Resources for Employers – Requesting Opinion Letters and a Data Search Tool

In December 2020, the Equal Employment Opportunity Commission took several actions of (more or less) interest to employers.  For more, click here.

OFCCP Issues Final Rule on Religious Exemptions for Government Contractors

The Office of Federal Contract Compliance Programs issued Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption final rule, which becomes effective on January 8, 2021. According to the OFCCP, this rule provides clarity on the religious exemption for government contractors and subcontractors in Executive Order 11246, and ensures that religious organizations can participate in federal procurement.  For more, click here.

Worker Recall and Retention Mandates Imposed on Baltimore City Commercial Properties, Event Centers, and Hotels

In December 2020, the Baltimore City Council passed laws that impose reinstatement and retention obligations for commercial property (janitorial, maintenance and security employees only), event center (with 50,000 square feet or 1000 seats) and hotel (with 50 rooms or gross receipts of $5 million in 2019) employers in two separate acts. For more, click here.

Executive Order Prohibiting “Divisive” Training by Government Contractors Is Enjoined

A federal district court in California has issued a nationwide preliminary injunction that prevents the OFCCP from enforcing President Trump’s Executive Order on “divisive” training by government contractors and subcontractors. For more, click here.

TOP TIP: 2021 Brings New Minimum Wage Rates in the Mid-Atlantic and for Federal Contractors and Subcontractors

Although the federal minimum wage remains $7.25, most states in the mid-Atlantic region have implemented higher minimum wage rates. Several of them increase on January 1, 2021, as noted below. For more, click here.