Home Care Workers to get Minimum Wage and Overtime Protections, DOL Decides

Effective January 1, 2015, almost 2 million home health and personal care workers will be entitled to be paid at least the federal minimum wage and receive overtime pay, under a final rule announced by the U.S. Department of Labor on September 17.  According to new Secretary of Labor Thomas Perez, the final rule will give home care workers “parity” with direct care workers who work at institutional settings and will “ensure that direct care workers are available to elderly people who want to remain in their homes.”

The new rule will apply to all home care workers, including live-in workers, who are employed by a third party such as a home health agency.  The rule will also require the family of an elderly or ill person when the worker performs medical duties or primarily performs domestic duties that benefit other household members.

According to DOL, the “vast majority” of the affected workers are employed by third parties and only a “very small” number of workers employed by families will be affected by the rule.  Supporters of the rule argue that it will lift home care workers out of poverty and keep them in the workforce, thereby enabling them to help elderly and ill people in the comfort of their homes.  Opponents assert the rule will reduce the work hours to avoid overtime and will result in pay reductions to home care workers, force patients out of their homes and into institutions and reduce business for home health agencies.  Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee, stated that DOL has estimated the rule would increase the cost of home care by $2 billion over the next decade.

New Jersey Legislative Update: Pay Equity Protection, Social Media and Employer Responses to Unemployment Insurance Requests for Information

August was a busy month for New Jersey lawmakers with Governor Christie signing two bills, one regarding pay equity and one concerning personal social media accounts that he had conditionally vetoed earlier, and a bill regarding the impact of an employer’s failure to respond to a request for information for purposes of unemployment insurance benefits.  As described below, each bill will impact an employer’s compliance obligations and should be appropriately integrated into management practices.

  • Assembly Bill No. 2648 (A-2648), signed by the Governor on August 29, 2013, is a pay equity protection measure amending the New Jersey Law Against Discrimination (NJLAD) to bar employers from retaliating against employees who share information about the job title, occupational category or rate of compensation and other employment matters, or the gender, race or other protected characteristic of current or former co-workers when the inquiries are made to assist in investigating the possibility of unlawful discriminatory treatment in pay, compensation, bonuses, or benefits. It took effect upon enactment.

While the previously vetoed version of A-2468 would have protected those discussions under the State Conscientious Employee Protection Act, Governor Christie suggested that the amendment was more consistent with the underlying goals of the NJLAD, because that is the statute under which workplace discrimination claims are brought.  Governor Christie noted that “[t]oo often in our past, women have seen their incalculable contributions to the workplace insufficiently compensated.  We cannot allow that progress to succumb to ignorance.”

  • Assembly Bill No. 2878 (A-2878), also signed by the Governor on August 29, 2013, prohibits employers from requiring or requesting any employee or prospective employee to provide or disclose the user name or password or in any way provide the employer access to a personal account through the use of an electronic communications device.  A-2878 further prohibits employers from retaliating or discriminating an individual who has, or was about to:
    • Refuse to provide access to a personal social media account;
    • Participate in any complaint, investigation, proceeding or action concerning a violation of the act; or
    • Otherwise oppose a violation of the act.

Violations under the act are enforced through the Department of Labor and Workforce Development and violating employers could be subject to civil penalties up to a maximum of $1,000 for the first violation and $2,500 for each additional violation.  Governor Christie’s veto of the original version of the bill was based on a determination that it was overbroad and needed to provide for specific employer rights.

A key employer protection in A-2878 allows employers to investigate compliance with applicable laws, regulations or “prohibitions against work-related employee misconduct” when the employer receives specific information regarding an employee’s personal social media account, and also to investigate an employee’s actions related to the “unauthorized transfer of an employer’s proprietary information, confidential information or financial data to a personal account.”   The bill further clarifies that the employer is not prohibited from “viewing, accessing, or utilizing information about a current or prospective employee” that is available in the public domain.

New Jersey thus became the ninth State this year, and the twelfth State overall to enact legislation prohibiting employers from seeking or accessing current or prospective employees’ personal social media account information.  Federal legislation similar to these state social media account password protection laws has been introduced, including: the Social Networking Online Protection Act (HR-537) and the Password Protection Act of 2013 (HR-2077).

  • Senate Bill No. 2739 (S-2739), signed by the Governor on August 19, 2013, amends the New Jersey Unemployment Compensation Law to ensure that employers promptly respond to Division of Unemployment and Temporary Disability Insurance (Division) requests for information about claims for unemployment benefits.  In accordance with this Bill, if the Division erroneously pays a benefit because the employer failed to respond in a “timely or adequate manner” to a Division request for information related to the claim and the employer has an established pattern of failing to respond to these requests, the Division is prohibited from relieving the employer’s account for the charged benefit payments.  A benefit payment is “erroneous” when it would not have been made but for the employer’s failure to make a “timely and adequate” response.   The “pattern of failing” is established when the employer repeatedly fails to respond to Division requests for information related to a claim for benefits, unless the number of failures is less than three or less than two percent of the number of Division requests, whichever is greater. 

The act does not specify what is considered “timely or adequate,” but pre-existing statutory language provides an employer with ten days after the Division request to respond before the Division relies entirely on other sources to make a determination of wages and time worked.  Employers who previously may have failed to respond because it might result in a denial of benefits to the claimant now have more of an incentive to comply.

Kate Gold and Elena Min Author Daily Journal Article

Los Angeles Partner Kate Gold and associate Elena Min recently authored for The Daily Journal an article on changes to Section 218.5 of California’s Labor Code.  The change, enacted through Senate Bill 462, curbs an employer’s ability to recover prevailing party attorney fees and costs in a lawsuit seeking unpaid wages, fringe benefits, or health and welfare or pension fund contributions.

Scheduled to go into effect January 1, 2014, the amendment limits recovery of attorney fees and costs by a prevailing employer “only if the court finds that the employee brought the court action in bad faith.”

Kate and Elena said the amendment “strips employers of one possible weapon in their arsenal for deterring nonmeritorious wage and hour claims.”

“Attorneys for plaintiffs and defendants will likely disagree with the consequences of the amendment as well as its premise – that the two-way fee recovery of existing Section 218.5 has had a chilling effect on employees’ wage and hour claims under that section,” they wrote. “But the bottom line is that “bad faith” is a high standard to meet and the amendment makes fee recovery in Section 218.5 actions an uphill battle for employers.”

New Jersey Federal Court Finds that the Stored Communications Act Protects Employee’s Non-Public Facebook Wall Posts – But Also Provides Guidance on Whether An Employer Can Take Action Based on The Unsolicited Receipt of An Offensive Post

Facebook continues to be the new “water-cooler” as co-workers regularly “friend” each other and allow access to their “wall” posts.  New Jersey’s Federal District Court recently addressed the issue of whether a Hospital’s decision to suspend a nurse based on a post on her Facebook wall – which it received unsolicited from a co-worker who was a Facebook friend of the nurse – violated the Federal Stored Communications Act (“SCA”), 18 U.S.C. § 2701-11.  The Court also addressed the nurse’s related invasion of privacy claim.  Ehling v. Monmouth-Ocean Hospital Service Corp., 2013 U.S. Dist. LEXIS 117689 (8/20/13).   [Opinion]

The nurse was a Hospital employee who maintained a personal Facebook account.  She chose privacy settings that limited access to her “wall” to her Facebook ‘friends,” including one of her co-workers.  Following the 2009 shooting at the Holocaust museum, the nurse posted the following to her wall:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children).  Other guards opened fire.  The 88 yr old was shot.  He survived.  I blame the DC paramedics.  I want to say 2 things to the DC medics.  1.  WHAT WERE YOU THINKING and 2. This was your opportunity to really make a difference!  WTF!!!!  And to the other guards….go to target practice.”

Her co-worker took a screen shot of the post, and then showed the post to the nurse’s supervisor.  As a result, the Hospital temporarily suspended the nurse, with pay, due to the concern that her comment reflected a “deliberate disregard for patient safety.”

The nurse sued claiming that the Hospital’s reliance on her Facebook post violated the Federal Stored Communications Act – and was an invasion of privacy.  The Court first addressed the issue of whether the SCA applied to Facebook wall posts since the SCA was enacted in 1986, before the WorldWideWeb was developed in 1990 and web browsers were introduced in 1999.

The Court did determine that the SCA applied to Facebook posts based on the following analysis: (1) Facebook wall posts are electronic communications as defined by the SCA; (2) Facebook is an electronic communication service provider as defined within the SCA; (3) Facebook wall posts satisfy the “in electronic storage” requirement as they are not held in temporary, intermediate storage before delivery to the website, and are in accessible storage for back-up purposes; and (4) given that the touchstone of the SCA is to protect information that the communicator took steps to keep private, if a Facebook user chose privacy settings that limited access to her “friends,” the post at issue was covered by the SCA.  The Court relied on California precedent in reaching this determination.  Interestingly, the Court also found that the privacy protection provided by the SCA is not dependent on the number of Facebook friends to whom the user provides access.

However, the Court still granted summary judgment to the Hospital because it determined that the “authorized user” exception applied because the nurse granted her co-worker access to the post by “friending” her and thereby “intending” that her co-worker would view her posts.  The Court also rejected the claim that the “authorization was coerced because the supervisor had never asked the co-worker for any information about the nurse, or the nurse’s Facebook activity.  The Court also noted that the nurse’s supervisor was not in a position to offer the co-worker any benefit in exchange for the unsolicited presentation of the Facebook post since supervisor worked in a different division and had no control over the co-worker’s compensation.

The Court also dismissed the nurse’s common law invasion of privacy finding that:

“The evidence does not show that Defendants obtained access to Plaintiff’s Facebook page by, say, logging into her account, logging into another employee’s account, or asking another employee to log into Facebook.  Instead, the evidence shows that Defendants were the passive recipients of information that they did not seek out or ask for.  Plaintiff voluntarily gave information to her Facebook friend, and her Facebook friend voluntarily gave that information to someone else.”

Notably, the nurse also filed a complaint with the NLRB, however the NLRB determined that the Hospital did not violate the NLRA, and that there was no privacy violation because the post was sent, unsolicited, to Hospital management.

What is the take-away from this decision?  First, employers have been waiting since the 2009 jury verdict in Pietrylo v. Hillstone Restaurant Group for guidance about what circumstances would qualify as “authorization” under the federal and NJ stored communications statutes.  Second, employers should continue to use extreme caution taking adverse action based on employees’ social media activities.  This decision, as well as recently enacted state legislation, clearly prohibits employers from directly – or indirectly – demanding access to employees’ social media accounts.  As of July, 2013, legislation has been proposed in over 30 states to prevent employers from requesting passwords, and a number of states have enacted such legislation, including California, Illinois, Maryland and Michigan.  Facebook has also condemned the practice and has updated its Statement of Rights and Responsibilities to address this issue.

In addition to potential liability under the SCA, the NLRB has been very active with regards to finding that Facebook rants about bosses, work conditions or compensation fall within the realm of protected “concerted activity” under the NLRA.  However, even the NLRB has recognized that employers have a legitimate basis to take action in response to negative postings about their customers/clientele.  The Office of the General Counsel found no violation for Facebook firings of a bartender who labeled customers as “rednecks” and hoped that they choked on glass, and of an employee of a residential facility for homeless people with significant mental health issues who joked about the condition of the facilities’ clients.

Audiocast – Impact of DOMA and Proposition 8 on California Employers – September 9, 2013 at Noon Pacific

The recent Defense of Marriage Act “DOMA” ruling has caused some concerns for human resources professionals and in-house counsel of companies headquartered or doing business in California. Those concerns include: (i) how will DOMA impact their policies, (ii) how will it affect benefit plans and retirement plans, and (iii) what does the ruling mean for employers, in connection to Proposition 8?

Please join four of our California-based Drinker Biddle lawyers from our new cross-over group, “California HR,” as they present a one hour audiocast to discuss these issues and the impact of DOMA and Proposition 8 on California employers.

Presented by:
Kate Gold, Partner
Summer Conley, Counsel
Cheryl Orr, Partner
Heather Abrigo, Counsel

This complimentary presentation will address:

  • Possible changes California employers need to make to welfare benefit and retirement plans.
  • How beneficiaries are now determined.
  • What documentation employers can require in confirming a domestic partnership or same sex marriage?
  • The intersection between DOMA and FMLA.
  • Marital status discrimination issues and other issues of concern to California employers.

There will be an opportunity at the end of the program to ask questions. Alternatively, if you have questions to present to the speakers ahead of time, please send them to contact@dbr.com.

Participant Access Instructions:
Dial in 5 – 10 minutes prior to start time using the participant phone number and participant passcode.
Participant Code: 312703
International: 719-457-2626
United States/Canada: 866-431-5314

FMLA Protected Leave Now Available To Same-Sex Spouses

United States Secretary of Labor, Thomas Perez, recently issued an internal memorandum to department staff outlining the Department of Labor’s plan to issue guidance documents which will, among other things,  make protected leave available to same-sex couples under Family and Medical Leave Act (“FMLA”)This action comes as the Department prepares to implement the Supreme Court’s recent decision in U.S. v. Windsor, which struck down the provisions of the Defense of Marriage Act (“DOMA”) that denied federal benefits to legally married same-sex spouses.  Calling it a “historic step toward equality for all American families,” Secretary Perez noted that the Department of Labor will coordinate with other federal agencies to make these changes “as swiftly and smoothly as possible.”

Secretary Perez stated that guidance documents would be updated to remove references to DOMA and to “affirm the availability of spousal leave based on same-sex marriages under the FMLAThis change is of great consequence to same-sex spouses who previously were unable to access the job-protected leave provided under the FMLA.  Now, eligible same-sex spouses will be able to take FMLA leave for certain specified family and medical reasons, including caring for a spouse with a serious health condition, and generally will be returned to their original position or another position with equivalent pay, benefits and status.  The new interpretation reflected in the Department’s updated guidance documents will be effective immediately.

In the Department’s official blog, Modern Families and Worker Protections, Laura Fortman, the principal deputy administrator of the Wage and Hour Division, announced on August 13, 2013 that revisions had already been made to various FMLA guidance documents to reflect the changes necessitated by U.S. v. Windsor.  Fortman clarified that the “changes are not regulatory, and they do not fundamentally change the FMLA.”  They merely expand the universe of employees who are eligible for FMLA benefits by including legally married same- sex couples.  The updated documents can be viewed at these links:

Although Secretary Perez did not specifically address the question, the updated guidance documents indicate that the Department only intends to expand FMLA benefits to same-sex spouses in the 13 states and the District of Columbia that have recognized same-sex marriage.  As an example, Fact Sheet#28F, Qualifying Reasons for Leave Under the Family and Medical Leave Act, defines “spouse” for purposes of FMLA leave as  “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.”   In contrast, the Office of Personnel Management announced on its website that benefits will be extended to Federal employees and annuitants who have “legally married a spouse of the same sex, regardless of the employee’s or annuitant’s state of residency.”

As initial steps to implementing these changes, employers should inform or train human resources personnel regarding the availability of FMLA leave to eligible employees under the specified definition of spouse; review internal procedures and leave documentation to ensure compliance, and finally, review employee handbooks and policies to include provisions for same-sex couples where appropriate.

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