NEWSLETTER

Home care workers are currently exempt from overtime under federal law. That exemption faces significant new challenges from proposed legislation and administrative rulemaking which, if successful, will require third party employers and home health care agencies to pay overtime to home care workers.

The current exemption: In Long Island Care at Home, Ltd. v. Coke, 549 U.S. 1105 (June 11, 2007), the Supreme Court unanimously held that home care workers employed by third party employers or agencies are exempt from overtime under the "companionship exemption" to the Fair Labor Standards Act (FLSA). Non-profit agencies in New York that timely filed Statements of Non-Profitmaking Institution with the NYS Department of Labor are also exempt from paying overtime under New York State law.

New challenges to Coke: Congressional lawmakers and Obama administration rulemakers are challenging the overtime exemption under Coke. On July 28, 2010, Rep. Linda Sanchez (D-Calif.) introduced the Direct Care Workforce Empowerment Act of 2010 (H.R. 5902), which would amend the FLSA to require that home care workers employed by third party employers or agencies be paid overtime. Sen. Casey (D-Penn.) introduced a companion bill in the Senate on August 3. If the bills are signed into law, the Supreme Court's ruling in Coke will be overruled, and the DOL will be required to issue new regulations consistent with the bill's amendments to the FLSA.

In addition, as indicated on April 26, 2010 in its Semiannual Regulatory Agenda, the DOL plans to propose new regulations reinterpreting the FLSA to extend overtime protection to home care workers as soon as October 2011 (effectively repealing the same regulations that were upheld in Coke).

Thus, even if H.R. 5902 fails to be enacted into law, new DOL regulations granting new overtime protections to home care workers are on the horizon — regulations that the Supreme Court has said will be entitled to deference by courts under Coke.

How this could affect agencies: If overtime is required for home care workers, whether by legislation or regulatory change, agencies will have to adopt the necessary controls for insulating against wage and hour risks. Workers' schedules may need to be revised. Differential pay for weekend or night shifts, which affects a worker's "regular rate" of pay on which overtime is computed, will have to be monitored closely. Overtime litigation will likely increase, with additional claims, as well, for travel time between assignments, meal periods when the worker is not completely relieved of duties, waiting time when it is part of a worker's job responsibilities, on-call time, training time, and sleeping time when the worker does not receive at least five hours of sleep during a scheduled sleep period.

Stephen Zweig, szweig@fordharrison.com, a partner in our New York City office, is the author of this article. •

Effective January 1, 2011, a new law will prohibit many Illinois employers from basing hiring, promotion, and other employment decisions on an employee or job applicant's credit history.

The Employee Credit Privacy Act (HB 4658), which was signed into law by Governor Pat Quinn on August 10, 2010, also forbids employers from inquiring about or obtaining a copy of an applicant or employee's credit history or credit report. Employers will still be permitted to conduct background checks on applicants and employees, so long as that check does not include a credit history or report. Illinois joins Washington, Hawaii, Oregon, and Louisiana in prohibiting the use of credit histories in employment decisions.

There are limited exceptions to the law. For example, covered employers may still use credit history for employment decisions for managerial positions that involve setting the direction or control of the business and for positions that involve unsupervised access to more than $2,500; signatory power over business assets of $100 or more per transaction; or access to personal, financial, confidential, trade secret, or state/national security information.

Although the new Illinois law does not apply to banks, insurance companies, law enforcement, and many public sector jobs, it will apply to a broad swath of private employers in Illinois. Supporters of the new provision say the measure will stop employers from denying a job or promotion based on information that does not relate to a person's ability to perform a job, while opponents contend the law is yet another batch of red tape that will impede job creation in the state.

Steve Brenneman, sbrenneman@fordharrison.com, a partner in our Chicago office, is the author of this article. •

On August 13, 2010, President Obama signed into law H.R. 6080, known as the Emergency Supplemental Appropriation for Border Security Act. This law became effective immediately and includes an increase of certain H-1B and L-1 application fees. The U.S. Citizenship and Immigration Service ("USCIS") will review H-1B and L-1 applications filed on or after August 14, 2010 for compliance with the new fees. If a company filed qualifying H-1B or L-1 applications after August 14, 2010 without the new fees, USCIS will hold the applications and issue a Request for Evidence ("RFE") to provide the employer an opportunity to submit the new fee or evidence that the employer is not obligated to pay it. If an employer believes it is not subject to the fee, it can provide USCIS evidence supporting that fact. Acceptable evidence would include a written attestation from the employer explaining why it is not subject to the new fee and any other additional information that supports the company's position. Further information is forthcoming, and USCIS is currently working on revising Form I-129 to conform to the law.

Affected employers are those who (1) employ 50 or more employees in the U.S.; and (2) 50% or more of the U.S. employees are H-1B or L-1 nonimmigrant workers. This is referred to as the "50-50 Rule."

Which Immigration Applications are Affected?

If you are a covered employer, you must pay the additional filing fee for initial and change of employer H-1B or L-1 applications. On the other hand, the additional fee does not apply to an H-1B or L-1 extension application filed by the same employer on behalf of an H-1B or L-1 employee for whom it previously filed an initial application.

For purposes of evaluating whether a company has a U.S. workforce that is comprised of 50% or more H-1B and L-1 workers, a company must include all part-time and full-time H-1B and L-1 workers (including workers authorized to work under an L-2 dependent Employment Authorization Document). This calculation must be done based on a company's numbers at the time of filing a qualifying initial or change of employer application.

The additional fee for initial and change of employer H-1B applications is $2000. This fee must be paid on top of existing fees (i.e. USCIS processing fee, Fraud Prevention and Detection Fee, ACWIA fee, and optional Premium Processing fee).

The additional fee for initial and change of employer L-1 applications is $2250. This fee must be paid on top of existing fees (i.e. USCIS processing fee, Fraud Prevention and Detection Fee, and optional Premium Processing fee).

If a company is subject to the new fee, it should issue a check in the appropriate amount made payable to the Department of Homeland Security and submit it with the application and other required fees.

Geetha Nadiminti, gnadiminti@fordharrison.com, an attorney in our Atlanta office and a member of Ford & Harrison's Business Immigration practice group, is the author of this article. •

Recent news reports have focused attention on whether state medical marijuana use laws limit an employer's ability to discharge an employee for violation of the employer's substance abuse policy. For the most part, lawsuits challenging such discharges have been unsuccessful, primarily because marijuana use is still illegal under federal law. However, employers implementing or enforcing drug-testing policies in states with such laws should be aware of the state law requirements.

Currently, fourteen states and the District of Columbia have laws legalizing medical marijuana use. Similar legislation is under consideration in several other states. However, the federal Controlled Substances Act (CSA) does not recognize a medical use for marijuana. The U.S. Supreme Court has upheld the constitutionality of the CSA, which means that state laws authorizing the medical use of marijuana do not insulate drug users from federal laws criminalizing such behavior. See Gonzales v. Raich (2005). However, the Gonzales decision did not overturn state medical marijuana use laws.

Most of the state laws focus on protecting medical marijuana users and their physicians and/or caregivers from prosecution under state criminal laws and do not address the rights or responsibilities of employers. Thus, state courts have been called upon to determine the extent of an employer's obligation to accommodate employees using marijuana under the medical use laws. Generally, courts have found no such obligation.

Both the California Supreme Court and the Oregon Supreme Court have held that discrimination laws in those states do not require employers to accommodate an employee's use of marijuana under the states' medical marijuana use laws. Additionally, the Montana Supreme Court has held that the state's medical marijuana law, which specifically states that it cannot be construed to require employers "to accommodate the medical use of marijuana in any workplace," does not provide an employee with an express or implied private right of action against an employer. See Johnson v. Columbia Falls Aluminum Co. (Mont. 2009). Further, the Washington Supreme Court has agreed to review a lower court's decision holding that Washington's Medical Use of Marijuana Act does not create an implied right of action against an employer who discharges an employee for off-duty medical marijuana use.

Some state laws provide more protection for employees. For example, the laws in Rhode Island and Maine prohibit employers from penalizing an individual merely because of the person's status as a medical marijuana user. However, the Rhode Island law specifically states that it does not require an employer to accommodate medical use of marijuana in the workplace. State court decisions will likely provide employers with further guidance regarding the reach of these laws.

Although it appears that most courts permit employers to enforce drug-free workplace policies even in states that have medical marijuana use laws, employers in those states should be aware of the state law requirements when implementing and enforcing drug testing policies. •

One of the changes made by the Patient Protection and Affordable Care Act (PPACA) was to amend the federal Fair Labor Standards Act (FLSA) to require covered employers to provide employees with a "reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk." The law also requires employers to provide "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk." The requirement took effect when the PPACA was signed into law on March 23, 2010.

Although the Department of Labor (DOL) has not yet issued regulations interpreting the requirement for breaks to express breast milk, it recently published a Fact Sheet designed to provide guidance on this new requirement. The fact sheet is available on the agency's web site at: http://www.dol.gov/whd/regs/compliance/whdfs73.htm.

The Fact Sheet notes that the law requires employees to be given breaks to express milk as frequently as needed by the employee and that the frequency as well as the duration of the break will likely vary. The Fact Sheet also notes that although a bathroom is not a permissible location under the Act, a space that is temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient, as long as the space is shielded from view and free from any intrusion from co-workers and the public.

The FLSA only requires employers to provide breaks for expressing breast milk to nonexempt employees. However, employees who are considered exempt under the FLSA may still be entitled to such breaks under applicable state laws. The new law does not preempt state laws that provide for greater protection to employees.

Under the new provision, employers with fewer than 50 employees are not required to provide breaks to express breast milk if doing so would impose an undue hardship. The Fact Sheet notes that the determination of whether compliance would be an undue hardship is made by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature and structure of the employer's business. The Fact Sheet also notes that all employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.

Although employers are not required to compensate employees for breaks taken to express breast milk, if the employer provides compensated breaks and the employee uses that time to express breast milk, the employee must be compensated in the same way that other employees are compensated for break time. Additionally, the FLSA's general requirement that an employee must be relieved from duty or else the time must be compensated as work time applies to breaks taken to express breast milk.

The Department of Health and Human Services has information available on its web site that may be helpful to employers who are interested in establishing a workplace lactation support program.