In its July 2, 2015 monthly webinar, Sutton Hague Law Corporation conducted a mid-year review of changes in the law pertaining to Nevada employers. Topics covered in the webinar included the new proposed changes to federal overtime regulations, gender neutral bathrooms in the workplace, religious accommodations, independent contractors, and new National Labor Relations Board (NLRB) rulings.
Department of Labor’s Proposed Changes to Overtime Regulations
On June 30, 2015, the Department of Labor announced a proposal to expand overtime pay to approximately 5 million people. This proposal will include:
– Increasing standard salary level to 40th percentile of weekly earnings for full-time salaried workers at $921 per week, or $47,892 annually;
– Increasing total annual compensation requirement needed to exempt highly compensated employees (HCEs) to the 90th percentile at $122,148 annually;
– Automatic updates and increases in salary commensurate with inflation to remain at the 40th and 90th percentile or increases commensurate with the Consumer Price Index
At this time the proposed changes are not the law but it is anticipated that changes to existing federal overtime regulations will occur sometime in 2016.
Gender Neutral Bathrooms
With the increasing relevancy of gender identity and transgenderism, it should be no surprise that the Occupational Health and Safety Administration (“OSHA”) issued best practices for managing employee access to bathrooms. According to OSHA’s best practices, employers should provide employees with either single-occupancy unisex bathrooms, or multi-occupancy bathrooms with unisex stalls. This protects both the employer from inadvertently discriminating against the employee, and ensures that the employee has access to a bathroom with which he or she feels comfortable. At this time OSHA’s best practices are not the law but instead guidelines that employers can follow to avoid potential liability. However, it should be noted that Nevada law prohibits discrimination of an individual based his or her sex, gender identity, or gender expression which includes transgenderism.
On June 1, 2015, the Supreme Court of the United States issued an opinion on religious accommodation and discrimination in the workplace. This decision, Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., clarified what an employment applicant needs to prove in order to prevail in a disparate-treatment claim. For such purposes, the applicant need only show that that his/her need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his/her need. Therefore, even a seemingly neutral policy such as prohibiting headwear can constitute intentional discrimination. In light of this decision, employers are encouraged to review their handbooks and religious accommodation policies with qualified legal counsel.
Misclassification of Independent Contractors
Recently, the California Labor Commissioner ruled that drivers for the transportation company, Uber, are in fact employees and not independent contractors as Uber classified them. While this case has no binding effect on Nevada law it provides insight into classifying workers as independent contractors that all employers should note. In making this determination courts will look primarily to the amount of control the employer exerts over the manner in which the work is performed. Additional factors considered include: how integral the services rendered are integral to the employer’s business; the extent to which the worker can experience profit or loss from his/her work; the extent to which the worker invests in his/her own tools for the services; do the services rendered require a special skill; the degree of permanence the worker has with the employer; and the method of payment.
The Uber case is one of many showing the trend of finding an employment relationship when several of the above factors are present in the work relationship. However, on June 02, 2015, Governor Sandoval approved a Bill 224 that creates a conclusive presumption of an independent contractor relationship based upon several factors similar to those listed above with a few additions. It should be noted that the conclusive presumption under Nevada law is unlikely to impact decisions by the federal taxing authorities when determining whether or not the worker is an employee or independent contractor for purposes of whether federal payroll tax is owed.
New NLRB Rulings
The NLRB recently ruled on two cases touching on an employee’s rights to engage in “concerted activities” related to union organization.
Pier Sixty LLC.: This case involved an employee being terminated for posting a vulgar comment on his Facebook page regarding his supervisor during a rest break. While the majority of the post was a personal attack against the supervisor, the last sentence mentioned the union organization that was taking place at the time. The NLRB held that because the employee made the comment in relation to the union organization, it was protected concerted activity. The NLRB placed particular importance on lack of consistency in the employer’s policy concerning vulgar or offensive language, noting that the employees were attempting to unionize because they were tired of supervisors using vulgar and offensive language with them. The lack of consistency showed that the employer may have been targeting the union organizing activities.
Fresenius USA Manufacturing, Inc.: Similar to Pier Sixty: this case involved vulgar or threatening speech by an anonymous employee during union organization. The employer conducted an investigation and discovered the guilty employee but when he was confronted, he lied about having written the comment. As a result of lying during the investigation, the employee was terminated. The NLRB ruled that the termination was lawful because “employers have a legitimate business interest in investigating facially valid complaints of employee misconduct, including complaints of harassment.” Unlike in Pier Sixty, the employer in this case had a consistent policy of investigating complaints of vulgar or threatening language and terminating employees who violated the company’s policies.
In general, employers should be very cautious when deciding whether or not to discipline and/or terminate an employee for making disparaging comments about the company.
Other Topics Covered
– Consequences of misclassifying independent contractors
– Factors considered for the Nevada conclusive presumption of independent contractor relationship
CD’s and MP3 recordings of the webinars are available for purchase for $30! For more information you can email Yvette@suttonhague.com.