Wyche at Work: January 2015 Employment Update

Prepared by Ted Gentry

January 2015

North Carolina Companies Entangled in Religious Accommodation Claims with the EEOC

Claims of religious discrimination with the EEOC seem to be on the rise. Two recent announcements by the EEOC caught the eye of Wyche at Work. Both involved North Carolina companies and their refusal to hire Rastafarians and/or placing unreasonable conditions, according to the EEOC anyway, on employees or applicants who practiced Rastafarianism. One company settled with the EEOC for $50,000 after refusing to hire an applicant as a delivery driver because he would not cut his hair in accordance with his religious belief. The EEOC brought a lawsuit against a different company because it terminated a delivery driver for wearing a head covering in conjunction with his religious beliefs.

Title VII of the Civil Rights Act of 1964 not only prohibits religious discrimination but also requires employers to attempt to make reasonable accommodations for the sincerely held religious beliefs of employees, unless doing so would cause more than a minimal burden on the operations of the employer’s business. Misunderstood or not commonly held beliefs are not discredited in the eyes of the law or the EEOC. Wise employers should consider such requests on a case-by-case basis rather than steadfastly applying uniform grooming or workplace appearance rules. What may be unacceptable in some workplaces may have to be reasonably accommodated in other settings. If an employee or applicant needs a dress or grooming accommodation for religious reasons, for example, and notifies the employer that such an accommodation is needed, the employer should consider and grant the accommodation if it would not pose an undue hardship. Or, if the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. And, an employer does not have to accommodate an employee’s religious beliefs or practices if doing so would cause undue hardship (i.e., compromises workplace safety, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work). Please let us know if we can help you navigate these issues in your workplace.

Final Paychecks at Termination

Last month’s Wyche at Work addressed the requirement to report the hiring of new employees as required by state and federal law. This month, Wyche at Work tackles the end of the employment relationship: how to properly issue final paychecks to terminated employees. Obviously important to departing employees, handling end-of-employment compensation correctly is critical for employers. Claims for unpaid wages in South Carolina expose employers not only to the wages earned, but also to recovery of a prevailing employee’s attorneys’ fees, other legal costs, and up to three times the amount of disputed wages. Moreover, individual managers and officers may be held liable for corporate obligations to pay wages and employment taxes. In light of these weighty consequences, consider these issues when making final payments to employees:

  • HR and payroll professionals need to be aware that laws may vary from state to state on how to handle a terminated employee’s paychecks. Some states require payment on the last day of work; others have different requirements depending on whether the employee was terminated or voluntarily quit. South Carolina’s Payment of Wages Act (the “Act”) requires that employers “pay all wages due to the employee within 48 hours of the time of separation or the next regular payday, which may not exceed thirty days.”
  • It is important to keep these timeframes in mind with regard to a departing employee’s paycheck. While employers may be tempted to “hold” a final paycheck until the employee has completed certain tasks, signed certain documents, returned all company property, or met other transitional requirements of the employer, doing so would be improper if payment is untimely under the Act. In other words, employers should resist putting any condition or contingency on the timely payment of wages clearly accrued, earned, and indisputably owed.
  • Furthermore, “wages” are not just paychecks under South Carolina (and many other states) law. The Act defines wages as all amounts paid to an employee, including “vacation, holiday, and sick leave payments which are due to an employee under any employer policy or employment contract.” The Act is silent on whether accrued but unused vacation or sick leave must be paid to a terminated employee, so the practices and policies of the employer generally will control. Employers should clearly communicate these policies to all employees and apply them uniformly. For more information on this topic, see Wyche’s earlier article on managing your paid leave policies.
  • Employers who intend to make deductions or offsets from final paychecks for theft, lost or damaged company property, or other amounts owed to the company must have prior written notice of the amount and terms of the deduction. A proactive approach would include setting forth this policy in the Terms of Employment, policy manuals, agreements, or other documents at the beginning of or during the employment relationship; since obtaining authorization at the end of the employment relationship is often impractical. While it may seem intuitive that an employer can withhold wages from a departing employee who stole from the company, doing so without prior notice or authorization could expose the company to damages under the Act.
  • Finally, even authorized deductions cannot result in an hourly rate that is below the applicable minimum wage. There are very few exceptions to the minimum wage rule and employers should limit the deduction or offset to prevent the employee from getting less than minimum wage even under circumstances that seem justifiable.

OSHA Reminders and Rulings

Wyche at Work does not often report on OSHA issues, but some recent decisions and reporting requirements merit an update.

New Reporting Requirements in Effect

The Occupational Safety and Health Administration’s rule establishing new reporting requirements took effect January 1, 2015. As we reported in the September 2014 issue of Wyche at Work, employers are now required to report all work-related fatalities within eight hours. In addition, covered employers are to report work-related in-patient hospitalizations, amputations or losses of an eye within 24 hours. The old rule required employers to report only fatalities and hospitalizations of three or more employees and did not require any reporting of single hospitalizations, amputations or loss of an eye.

OSHA 300A Posting Period Starts February 1

Employers who are required to keep OSHA’s Form 300 illness and injury log must post Form 300A by February 1, 2015 and keep it posted until April 30. The form must be posted in a visible location even if no workplace illnesses or injuries occurred in the previous year. OSHA’s recordkeeping website provides an online tutorial as well as a guide containing fillable forms and instructions.

Company to Reinstate Pilot Following Whistleblower Investigation

A recent OSHA investigation provides a good reminder to be wary of terminating or disciplining employees who report safety violations in good faith. The agency recently ordered a company that provides medical air transportation services to pay more than $166,000 in back wages and damages to a pilot who refused to fly a medical transport helicopter over mountainous terrain at night due to a faulty emergency locator transmitter. The company placed the pilot on administrative leave and later terminated his employment. Following an investigation, OSHA found that the company fired the pilot in retaliation for reporting air safety information. OSHA also ordered the company to reinstate the pilot and provide whistleblower rights information to all employees.

OSHA Fines Company for Ergonomic Hazards and Recordkeeping Violations

Earlier this month, OSHA also fined a Georgia poultry processing plant more than $100,000 for violations related to ergonomic hazards and recordkeeping. OSHA’s investigation concluded that the company’s directives for evaluation and care of musculoskeletal disorders were out-of-date and contrary to good medical practice; the nurses were at risk of exceeding their authorized scope of practice; and there were delays in referral to a physician the cases that merited further diagnosis and treatment. OSHA cited one instance where company nurses examined and treated one worker 94 times before referring him to a physician!

When it comes to workplace safety concerns, employers are well advised to seek counsel or advice from safety experts to reduce hazards and maintain accurate records.

W-2 Deadline Approaches

Because January 31 falls on a Saturday this year, the deadline for issuing W-2 and 1099 forms for 2014 is Monday, February 2, 2015. The Internal Revenue Service has provided interim guidance and a FAQ on the Affordable Care Act’s requirements for reporting to employees the cost of their health care coverage. The Social Security Administration also offers assistance to employers on completing W-2 forms.

Picture of J. Theodore (Ted) Gentry

J. Theodore (Ted) Gentry

Ted Gentry focuses his practice on counseling colleges and universities and on appellate litigation. Ted’s career handling complex litigation gives him valuable insights into the ways that today’s decisions affect tomorrow’s disputes.

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