The Olympics of Employment Law
With hours of training, dedication, and laser focus, a skilled employment lawyer can turn any world event into a “gold medal” teachable moment. So, with the 2016 Rio Olympics in mind, here are some medal-worthy employment practices.
Substance abuse policies
If you’ve been watching the Olympics, you know that doping has cast a huge shadow over the competition. But the Olympics are not the only arena where substance abuse is an issue. In today’s workplace, employers must be prepared to address substance abuse in a variety of situations from safety practices to legal medical and recreational marijuana.
A seemingly straightforward issue, employers’ ability to require employees to submit to drug tests is governed by overlapping state laws and federal regulations that are anything but clear cut. Increasing the level of “technical difficultly” is a new OSHA rule announced in May that restricts employers’ ability to require blanket post-accident testing. To comply with the new rule, effective November 1, 2016, employers should conduct post-accident testing only when there is reasonable suspicion that an employee’s consumption of alcohol or drugs likely caused or contributed to the accident.
A medal winning employer will have a clear well-written substance abuse policy that conveys the policy’s purpose and employer’s expectations, establishes procedures for testing, indicates – if applicable – that assistance is available, and communicates consequences for violations of the policy.
The Zika virus and employee safety
Employers must often send employees into dangerous conditions and traveling to Rio in the midst of the Zika outbreak is just one example of that. What are an employer’s obligations in such circumstances?
Both the Center for Disease Control and OSHA have issued guidance and recommendations that can assist employers in responding appropriately when workers are located in areas of Zika-risk. Employers should take the time to familiarize themselves with those recommendations and ensure that the information is conveyed to managers and employees.
In addition, employers should not make assumptions about which employees can and cannot travel to areas where the risk of Zika exposure is the greatest. While employers may feel that they are “protecting” certain employees, such as pregnant women, by restricting travel, they may actually be setting themselves up for potential discrimination claims. The U.S. Supreme Court has held that employers cannot exclude women from jobs that might pose reproductive health hazards.
The lessons in responding to Zika apply to employee exposure to any type of health or safety risk. A medal winning employer will learn the risks to workers traveling to areas where health hazards are a concern, establish safety-protocols, clearly communicate these protocols to employees, and treat all employees in a consistent manner with regard to travel to high risk areas.
The FLSA and travel time
Employers who send employees on business trips must successfully navigate one of the trickiest wage-hour issues: travel time. Whether it’s employees who travel with the U.S. Olympic team or your own non-exempt employees traveling to an out-of-town conference, the rules governing pay for travel time have a high level of technical difficulty.
Generally, any travel time that cuts across an employee’s regular hours of work is considered “hours worked” for purposes of compensable time. Here’s where things get a little more complicated: travel on non-work days (such as weekends) also counts as hours worked if it occurs within the employee’s normal work schedule. For example, travel time on a Sunday during an employee’s regular 9-to-5 work hours is compensable time – even if the employee does not normally work on Sunday.
Let’s crank up the level of difficultly: driving a vehicle in work-related travel (not normal commute time), regardless of whether the travel takes place within or outside normal work hours, counts as hours worked for the driver. In other words, the act of driving is considered manual labor activity that must be counted as hours worked if it is for the employer’s benefit. But wait, there is this caveat, being a passenger in a car outside of regular work hours is not considered hours worked.
There is no doubt that understanding the FLSA’s travel time rules takes exceptional dexterity. The skill is likely to become even more important once additional employees join the non-exempt employee ranks when the new FLSA overtime rule becomes effective on December 1, 2016. Medal winning employers understand that the FLSA travel time rules are complicated. It’s important to take some time to learn the rules and ensure that managers and payroll personnel are trained on them as well. Just like the Olympics – a small mistake could result in a game changing penalty.
Enjoy the games!