Calculating the “regular rate” of pay:

Section 7 of the Fair Labor Standards Act (FLSA) requires an employer to pay one and one-half times an employee’s “regular rate” of pay for hours worked over 40 in a workweek. That “regular rate” includes all “remuneration for employment” and specifically includes nondiscretionary bonuses.

Nondiscretionary bonuses are bonuses announced by an employer, in advance, to induce a non-exempt (typically hourly) employee to take a specific action.

When such a bonus is attached to one week, calculating the regular rate is not complicated: the employer multiplies the employee’s standard hourly rate by the number of hours worked for that week, adds the discretionary bonus amount to that result, and then divides that total compensation number by the total hours worked to get the “regular rate” for the workweek. Employees are entitled to be paid the “regular rate” for each of the first 40 hours worked that week, and 1.5 times that regular rate for each overtime hour worked in the week.

But what if the bonus is for a multiple week period, and it’s impossible to allocate the full bonus to a particular week?

DOL’s recent Opinion Letter on discretionary bonuses:

That issue was addressed by the Department of Labor (DOL) on January 7, 2020, in the Wage & Hour Division’s first Opinion Letter of the year. In that Opinion Letter, the Administrator set forth the method for calculating the regular rate of an hourly employee who worked irregular periods of overtime during that employee’s probationary period, when the bonus applied to the full period. Opinion Letter FLSA2020-1, January 7, 2020.

In that circumstance, the employer agreed to pay a $3,000 lump sum to probationary employees who successfully complete a 10-week training period. As an additional precondition to the bonus, the employee was required to agree to remain with the employer for an additional unspecified training period. However, the employee did not have to complete any specific period of additional training after the iitial 10 weeks in order to collect the $3,000 bonus.

Based on the facts submitted, the DOL set forth the following assertions in its Opinion Letter:

  • The lump sum bonus should be allocated to the initial 10-week training period only; and
  • It is appropriate to allocate the lump sum bonus equally to each week of the 10-week training period, since each week counts equally in fulfilling the bonus criteria.

The overtime calculation and total earnings:

Therefore, in this particular instance, here are the steps to take to calculate the overtime pay:

  1. Determine amount of bonus to include: attribute $300 of the bonus ($3,000 divided by the 10 weeks) to each workweek;
  2. Determine the total straight time compensation for each overtime week: multiply the employee’s standard hourly rate by the actual hours worked, including overtime hours, within the workweek during which overtime was worked (straight time compensation = total hours worked x standard rate + attributable bonus);
  3. Calculate the new “regular rate” of pay: divide that straight time compensation total by the number of hours worked within that workweek (including overtime hours), which results in the new regular rate for that particular workweek;
  4. Calculate the overtime rate of pay: take the new regular rate of pay and multiply it by 1.5 – this is the overtime rate;
  5. NOW calculate the total earnings: start with straight time earnings, using the new regular rate (straight time earnings = new regular rate x straight time hours worked); then, calculate the overtime earnings (overtime earnings = new overtime rate x overtime hours worked within the calculation period); add those numbers together (total earnings = straight time earnings plus overtime earnings).

This is complicated – really complicated for some of us. But it’s the only way to assure that employees are being paid in a way consistent with the FLSA’s requirements.

The bottom line – and the critical reminder for employers – is that retroactive overtime payments must be made for non-exempt employees who work more than 40 hours in any workweek for which a non-discretionary bonus is paid. Recent and ongoing changes in the FLSA makes this an issue of which employers should be aware, as (based on this early Opinion Letter) it is an issue on which the DOL’s Wage & Hour Division is focusing attention in 2020.

At-will employment generally allows employment to end – by either the employer or employee – for any reason or no reason, other than for a violation of law. In West Virginia, as in many states, the rule that an employer has an absolute right to discharge an at-will employee is further tempered by the principle that where the employer’s motivation for the discharge contravenes some “substantial public policy,” then the employer may be liable to the employee for damages stemming from the discharge.

Typically, when an employee has been fired because that employee acted in self-defense in response to lethal imminent danger, such right of self-defense constitutes such a violation of public policy, and is an exception to the at-will employment doctrine. In fact, the firing of an employee after such an act could lead to an employee’s successful wrongful discharge claim.

While this standard has been reiterated in the court decisions in many states, the West Virginia state Supreme Court has limited such “wrongful discharge” claims by holding that the exception is limited to “only the most dangerous of circumstances.” Newton v. Morgantown Machine & Hydraulics of WV, Inc. S. Ct., November 19, 2019.

 In that case, the plaintiff, who was a Truck Dispatcher, was involved in a workplace argument with a company truck driver; the argument escalated into a physical altercation. After both employees were fired, plaintiff sued the company, asserting that he was “forced to defend himself” and “did not apply any force beyond what was necessary to protect himself.” He claimed that his firing violated the WV public policy of acting in self-defense.

The lower court dismissed the complaint on the basis that plaintiff’s conduct was not in response to “lethal imminent danger,” but rather was in response to a workplace argument. Plaintiff appealed to the state’s Supreme Court, which upheld the lower court’s dismissal. The Supreme Court found that because plaintiff was engaged in a workplace altercation “that did not involve weapons, dangerous circumstances, or a threat of lethal imminent danger,” his termination did not violate any public policy that supports self-defense in such situations.

The Supreme Court specifically held that while a particular employee may assert a public policy right to self-defense, an employer also has an interest in protecting its employees and customers from harm that could occur as a result of the employee’s actions in defending himself.

Employers have a duty safeguard employees, and to keep the workplace safe by prohibiting workplace altercations. Therefore, punishment (including termination) of ­all individuals involved in a workplace altercation will be supported – in West Virginia and other states with a self-defense public policy exceptions – other than in the “most dangerous of circumstances.”


Photo from “The Office” – Dwight does karate . . . sort of.

Investigative Confidentiality Gets the Support of the NLRB:

The National Labor Relations Board (NLRB) has reversed recent past decisions, and has held that an employer can require confidentiality from an individual employee involved in a current internal investigation. However, the NLRB only partly reversed past rulings on the issue, holding that while confidentiality can be required during an ongoing investigation, it may not be appropriate with respect to a past investigation. Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (Dec. 17, 2019).

At the basis of that decision is a policy of Apogee Retail LLC that requires employees to cooperate in internal investigations, and to “maintain confidentiality regarding those investigations.” Further, the same company’s list of rule infractions includes “unauthorized discussion of investigation or interview” with other employees.

Previously, the NLRB issued a decision in which it held that employees have a clear right to discuss discipline or ongoing disciplinary investigations involving themselves or coworkers, and that an employer’s restriction of such conversations amount to a per se violation of Section 7 of the National Labor Relations Act (NLRA). Fresh and Easy Neighborhood Market, 361 NLRB 151 (2014). The Board held, however, that an employer’s case-by-case showing of a “legitimate and substantial business justification” of such restriction could outweigh the protections afforded by Section 7. This put the onus squarely on the employer to defend such policies.

Since then, the NLRB consistently has determined that a case-by-case analysis of whether confidentiality can be required regarding a specific investigation must be made by the employer in order to defend itself against a Section 7 violation.

The Application of Facially Neutral Workplace Rules:

However, in 2017, the NLRB issued a decision (not related to investigative confidentiality) in which it set forth the test for applying facially neutral workplace rules so as to assure compliance with the NLRA. In that case, the Board spelled out three categories to assist in that test:

  • Category 1 includes rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.
  • Category 2 includes rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
  • Category 3 includes rules that the Board designates as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.

This test initially switches the burden from the employer (to determine the need for the policy on a case-by-case basis) to the NLRB’s General Counsel (to determine whether a specific policy interferes with the exercise of NLRA rights).

The Narrow Nature of the Apogee Decision:

In analyzing Apogee’s confidentiality policy, the Board stated that “[c]onfidentiality assurances during an ongoing investigation play a key role in serving the interests of both employers and employees,” and result in “investigative integrity.” Based on that fact, the Board found that “investigative confidentiality rules are lawful [under the three-category analysis] to the extent they apply to open investigations,” and fall within Category 1 rules. The Board therefore created a blanket allowance of such rules for ongoing investigations.

However, the Board went further, finding that once an investigation has concluded, extending the confidentiality requirement beyond the duration of the investigation may adversely affect an employee’s Section 7 rights. Therefore, a policy that – either directly or by omission – does not include a finite end to the confidentiality directive would fall within Category 2, which then puts the burden back on the employer to justify the policy.


While employers are applauding the Apogee decision, it is important not to overlook the restriction of that holding to ongoing investigations. To the extent that a company’s requirements for investigative confidentiality do not include such a limitation, it is important to document and retain reasons for the extension of confidentiality, should the employer wish it to continue beyond the conclusion of the investigation.

An employer instituted a no-fault attendance policy which allowed employees’ absence points to be reduced for each 30-day period of “perfect” attendance. An employee sued the company, based on the claim that his intermittent FMLA leave kept him from fully participating in that program.

The lower court agreed with him, but the U.S. Court of Appeals for the Sixth Circuit reversed the lower’s court’s decision, stating that the point reduction for perfect attendance may have interfered with the employee’s FMLA rights. Dyer v. Ventra Sandusky, 6th Cir., 18-3802, August 8, 2019.

Facts of the case:

  • Plaintiff Dyer worked for Ventra Sandusky, an automotive supplier, as a full-time Technician;
  • Dyer suffers from migraine headaches, which prevent him from working on multiple days each month;
  • Ventra Sandusky granted intermittent leave for those absences;
  • Ventra Sandusky has a no-fault attendance policy under which employees are assessed points for absences;
  • An individual’s employment is terminated if 11 or more points are accumulated;
  • Dyer did not receive points for his FMLA absences, but received points for other absences, excused and unexcused;
  • Ventra Sandusky allows employees to reduce accrued points, subtracting one point for each rolling 30-day period of “perfect attendance”;
  • The perfect attendance calculation is interrupted if an individual is absent for any reason, other than “Vacation, Bereavement, Jury Duty, Military Duty, Union Leave and Holidays,” none of which stop the 30-day clock;
  • In other words, those absences were counted as days “worked” for purposes of the point reduction program, and did not reset the running of the 30-day clock back to day 1;
  • However, the point reduction schedule did not count FMLA leave or other unpaid disability leaves as days “worked” toward the 30-day perfect attendance goal, so those absences did reset the 30-day clock;
  • While the company did not add points for absences due to FMLA, it classified FMLA leave as an absence that reset the 30-day clock back to day 1 after the absence;
  • Dyer was terminated for accumulating 12 points under the attendance policy;
  • He sued the company, alleging that because his FMLA absences kept him from enjoying the same benefit that certain non-FMLA employees received (an uninterrupted 30-day attendance period), the company was interfering with his FMLA rights;
  • The lower court dismissed the lawsuit, finding that because all employees on medical-related leaves were treated equally, Dyer could not support his FMLA interference claim;
  • That finding was reversed on appeal by the Sixth Circuit.

The Sixth Circuit cited to the language of the statute which says specifically that “[a]t the end of an employee’s FMLA leave, benefits must resume in the same manner and at the same levels as provided when the leave began.” In other words, Dyer’s leave could suspend the accrual of attendance days, but could not reset it to zero; when he returned to work, Dyer would begin to accrue days at the point at which he had left off.

According to the Court, “denying a valuable term or condition of employment to an employee taking FMLA leave interferes with the right to take that leave.” It found that resetting Dyer’s perfect attendance clock every time he took FMLA leave “effectively denied him the flexibility of the no-fault attendance policy that every other employee not taking FMLA leave enjoyed.”

In essence, the Court found that Dyer was prejudiced by the policy because his ability to remain employed hinged on not taking FMLA leave, thereby interfering with those rights. The Court reversed the lower court’s decision and remanded the case back for a jury trial, pointing out that “a jury could find that Ventra Sandusky’s no-fault point-reduction scheme interfered with Dyer’s right to take FMLA leave and be restored to an equivalent position with equivalent benefits . . . upon return to work.”

This case underscores the important principal that employees on FMLA must be treated as if they have not left the workplace; their conditions of employment – with very few exceptions – must return to the level at which the employee left them at the initial time of leave.

Workplace burnout has been designated by the World Health Organization (WHO) as an “occupational phenomenon.” Employers should begin to formulate and implement mechanisms for dealing with the issue.

The World Health Organization:

WHO is headquartered in Geneva, Switzerland, and is a part of the United Nations that focuses on global health issues. The WHO has been working since 1948 on such issues as immunizations, health education, and smallpox and polio eradication. The United States is one of the nearly 200 members of that worldwide organization.

The original Preamble of the WHO’s Constitution – which remains unchanged, over 70 years later – defines health as a state of “complete physical, mental and social well-being and not merely the absence of disease or infirmity.” To support that definition, the WHO maintains the International Statistical Classification of Diseases and Related Health Problems, often referred to as the ICD.

The International Statistical Classification of Diseases and Related Health Problems:

The ICD was designed to: map all health conditions (both mental and physical); classify those disorders; and provide diagnostic assistance with respect to those conditions. It currently is the most widely used statistical classification for diseases and disorders in the world. The most recent version of the ICD – the 11th – was accepted by WHO’s governing body on May 25, 2019, and becomes effective as of January 1, 2022.

ICD-11 includes the term “burn-out” as an occupational phenomenon (but not as a medical condition). It defines burn-out as: “a syndrome conceptualized as resulting from chronic workplace stress that has not been successfully managed.” Employers should note that in the ICD-11, burn-out is defined exclusively within the occupational context.

In addition, the three dimensions of burn-out as set forth in the ICD-11 provide a roadmap to employers who are sincerely concerned about employees’ mental health and well-being. Employees moving toward burn-out are experiencing:

  • Feelings of energy depletion or exhaustion;
  • Increased mental distance from one’s job, or feelings of negativism/cynicism related to the job; and
  • Reduced professional efficacy.

What can employers do?

While WHO has stated that it is “about to embark on the development of evidence-based guidelines on mental well-being in the workplace,” none have been proposed yet. For now, then, it is up to employers to become more knowledgeable about work-related stress and its effect on productivity and healthy workplaces. Here are five “best practice” tips for employers who want to assure a mentally healthy workforce, and a legally compliant workplace:

  • Become aware and be able to discuss the symptoms and consequences of stress-related burnout, and environmental factors that may exacerbate it;
  • Determine which federal employment laws apply to requests for accommodation and leave regarding mental health and stress-related issues;
  • Understand the applicability of the ADA’s mandatory “interactive process” for accommodation of stress-related conditions and the applicability of the FMLA’s “serious health condition” requirement;
  • Establish legally compliant methods for returning an affected employee to work after a stress-related leave; and
  • Implement written policies and procedures to identify and minimize stress-related burnout, and assure legal compliance with those efforts.


Artwork from Headspace, the mindfulness and meditation app, found at

The “minimum wage” is the minimum hourly wage that an employer must pay to a covered nonexempt employee for work, and is set by federal, state, and local law. The current federal minimum wage, which was set in 2009 under the Fair Labor Standards Act (FLSA), is $7.25/hour.

States are able to set their own minimum wages, independent of the federal government’s $7.25/hour, and frequently set that number at a higher rate than the federal amount. As of January 2018, more than half of states had minimum wages higher than that federal minimum.

Multiple states have made long-term plans to significantly raise minimum wage rates. For instance, California and Massachusetts each will increase its minimum hourly wage to $15.00 by 2023. Other states are raising their rates incrementally over a shorter period of time. Colorado, for example, has raised its minimum hourly rate by $.90 each year to a final $12.00 in 2020.

Adding to the mathematical and legal issue inherent in these differing numbers, certain local governments have enacted minimum hourly wages that exceed their state minimums. Seattle, Washington is one example. In 2014, that city enacted an ordinance which will increase the minimum wage there to $15.00 an hour, phased in by 2021. Since Seattle’s ordinance, a number of other cities have enacted $15.00 hourly minimum wages, including San Francisco and New York City. However, 25 states have passed laws that restrict local governments from setting minimum wages that differ from the state’s own minimum.

The 2019 updates to state and local minimum wage rates have been compiled in a convenient and accessible format by Chuck McDonald, shareholder in Ogletree Deakins’ Greenville, SC office, and can be found here.

While the minimum wage has become more and more politicized, it still is a matter of legal compliance of which employers should be aware. It is worth noting, as part of that compliance effort, that every employer of employees subject to the FLSA must post, in a “conspicuous” place, a notice explaining that Act. The content is proscribed by the Wage & Hour Division of the Department of Labor, and is available on the DOL’s website.

Some employers operate under the assumption that “at-will” employment means that an employee does not have to be given any reason for termination of his or her employment. However, that theory may allow an employee to overcome an employer’s motion to dismiss a discrimination lawsuit, since in order to overcome such a motion, a plaintiff simply has to set forth facts sufficient to state a “plausible” claim for relief. That standard means that a plaintiff can set forth claims that would allow the court to draw inferences of discrimination, because of the absence of documentation or other evidence to the contrary.

A court clinician who specialized in placing individuals into drug treatment programs has avoided dismissal of her sexual harassment claims against a drug court judge and against the behavioral health network that put her into the court clinician job, after being removed from her position. (Tammy Cagle v. Thomas Estes & Behavioral Health Network, Inc., U.S District Court for the District of Massachusetts, Case No. 3:18-cv-10123, Aug. 22, 2018.)

Facts of the Case:

Tammy Cagle, a licensed social worker, applied to Behavioral Health Network (BHN) in June of 2016 for the position of specialty court clinician to the Pittsfield, Massachusetts drug court. BHN was under contract with the state’s Department of Mental Health (DMH) to fill that position. In July 2016, Judge Thomas Estes, the presiding judge of the Pittsfield drug court, approved Cagle’s hiring after meeting with her. Estes was Cagel’s sole supervisor from July through November 2016. After that, and during the period until March 2017, Cagle had other supervisors, but Estes was her only “consistent” supervisor.

Cagle alleges that in beginning in August 2016, Estes directed her to meet alone with him in chambers, and that she was the only drug court team member that did so. She also alleges that Estes acted inappropriately with her on various occasions, including one incident in a hotel room during a work-related conference. Cagle claims that after that incident, Estes told her that if anyone found out about their encounter, it would “be worse” for her in drug court. Cagle never reported Estes’ conduct to BHN.

Between December 2016 and March 2017, Cagle’s clinical supervisor from BHN met with her frequently, and both he and BHN’s Director of Forensics praised Cagle’s job performance on multiple occasions. In addition, on March 16, 2017, Judge Estes specifically indicated to BHN that Cagle was a “top-notch clinician.”

However, on March 17, 2017, Cagle received a call from BHN’s Director of Forensics, saying that as the result of a complaint being filed against her, Cagle was being placed on administrative leave immediately and was not permitted to return to the drug court. No details were provided, and the identity of the source of the complaint was not revealed. Cagle immediately texted Estes, who denied knowing anything about the situation.

Four days later, Cagle was reassigned to a non-drug court position, and at a lower salary. Subsequently, Estes reportedly criticized Cagle’s previous work, telling BHN that Cagle had “no people skills” and that court staff had made “many complaints” about her. On April 18, 2017, Cagle resigned her position.

Cagle’s Motion to Dismiss:

In response to Cagle’s federal court complaint against both BHN and Judge Estes, BHN filed a Motion to Dismiss. The district court denied that motion, allowing the case to proceed.

In order to prove employer liability (whether against an individual employer or a joint employer), a plaintiff must show that the employer knew or should have known of the discriminatory behavior being complained of, and that the employer failed to take prompt corrective measures within its control.

The same standard applies to an employer whose employee has claimed to have been harassed by a non-employee.

Therefore, in Cagle’s case, the issue was whether or not Cagle’s federal court complaint sufficiently alleged that BHN knew or should have known about the hostile work environment caused by Estes.

The District Court’s Decision:

Importantly for purposes of a Motion to Dismiss, the law does not require that a plaintiff herself bring alleged misconduct to the employer’s attention, so long as the employer has notice. Here, the district court determined that Cagle’s complaint “plausibly raises the possibility that BHN knew or should have known of the sexual harassment.”

It based that determination on the fact that in spite of earlier compliments from BHN on Cagle’s performance, and the absence of negative evaluations in Cagle’s personnel file, BHN informed Cagle that she was being removed permanently from her drug court position, while refusing to describe the alleged “multiple complaints” upon which that action was being taken. However, they allegedly did inform Cagle that her removal from the position partially related to a decision on her part to incarcerate a criminal defendant while he waited for a bd in a drug treatment program. In reality, however, Judge Estes made actual decisions related to sanctions for drug defendants, including incarceration.

Based on those facts, along with the timing of the March 16 accolade from Estes (Cagle was a “top-notch clinician”), and the March 17 placement on administrative leave with subsequent removal from the drug court, the district court found an inference that “BHN’s stated reason for Plaintiff’s removal from the drug court was not the real reason, or the whole reason, for ending the assignment,” and denied the Motion to Dismiss.

The court in this case quoted the First U.S. Circuit Court of Appeals in Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 18 (1st Cir. 2011): “The lack of any plausible alternative justification for the plaintiffs’ terminations makes the inference of . . . discrimination from the facts alleged more reasonable.” In other words, the combination of “abundant facts” of sexual harassment, in combination with the timing of Cagle’s discipline, created an inference sufficient to allow Cagle’s case to go forward.

At-Will Employment Doctrine:

Many employers interpret “at-will” employment to mean that they do not have to provide a reason for termination, as long as they do not believe the action to have been based on discrimination. However, that is not the legally safest interpretation. Employers should recognize that before disciplining or terminating an employee, supporting facts for that action should be carefully reviewed and documented to assure consistency and a clear decision-making process that will withstand legal scrutiny.

The Americans with Disabilities Act (ADA) requires that employers reasonably accommodate employees with disabilities, including allowing modified work schedules when appropriate. One federal appellate court has addressed that issue, overlaid with the question of accommodating an employee’s postpartum depression after FMLA leave, and has held that a lower court wrongly concluded that full-time presence was an essential function of the employee’s position. Hostettler v. College of Wooster, 6th Cit., No. 17-3406, July 17, 2018.

Heidi Hostettler was fired by her employer, the College of Wooster, while recovering from postpartum depression and separation anxiety after the birth of her child. Because of her condition, Hostettler was unable to return to her job in the college’s HR Department on a full-time basis after a leave of absence.

Here are the facts, as viewed by the courts:

  • Hostettler was hired as an HR Generalist by Wooster in late summer 2013;
  • During the interview process, Hostettler informed Wooster that she was pregnant;
  • Wooster’s practice was to allow a new employee 12 weeks of unpaid maternity leave under the Family and Medical Leave Act (FMLA), even if the employee did not otherwise qualify;
  • Until the birth of her child in February 2014, Hostettler worked full-time, typically from 8:00 a.m. until 5:00 p.m., with some calls and emails during off hours and weekends;
  • Hostettler was never criticized, reprimanded, or disciplined prior to the birth of her child;
  • From February to April, Hostettler took 12 weeks of unpaid maternity leave;
  • Toward the end of her leave, Hostettler was diagnosed with severe postpartum depression and separation anxiety;
  • Believing that Hostettler was suffering from “one of the worst cases of separation anxiety” that he had seen, Hostettler’s doctor provided a restriction that Hostettler return on a part-time basis only, working a total of two or three days a week;
  • Hostettler’s supervisor (Beasley) agreed to that accommodation, suggesting that Hostettler work 5 half-days per week;
  • Hostettler agreed, and returned to work in late May on that schedule;
  • Hostettler’s performance evaluation, conducted in July 2014, contained no negative feedback, and referred to Hostettler as a “great colleague and a welcome addition to the HR team!”;
  • However, Beasley felt that Hostettler’s part-time schedule was beginning to put a strain on the rest of the department;
  • That perception was not shared by Hostettler’s co-workers, one of whom submitted an affidavit saying that Hostettler could accomplish work from home – a common practice in the department – and knew of no assignments or programs that Hostettler had failed to complete “professionally or timely” on her part-time schedule;
  • Hostettler was never criticized, reprimanded, or disciplined during the period of her part-time work;
  • In mid-July, Hostettler submitted an updated medical certification estimating that she could return to a full-time schedule in early September;
  • The day after receiving that updated certification, Beasley fired Hostettler on the premise that the department could not function appropriately unless Hostettler could return to full-time work immediately;
  • Hostettler’s position was not filled until October;
  • Hostettler sued Wooster, claiming violation of Title VII’s Pregnancy Discrimination Act (PDA), the ADA, and the FMLA.

The district court granted Wooster’s motion for summary judgment on all claims on the basis that full-time presence was an essential function of the HR Generalist position. The district court held that because Hostettler could not satisfy that essential function or suggest a reasonable accommodation that allowed her to meet that essential function, Hostettler was not a “qualified individual” protected by the ADA. That initial conclusion also formed the basis of the district court’s remaining analysis.

On appeal, the U.S. Court of Appeals for the 6th Circuit disagreed, reversing the dismissal and remanding the case back for trial on all issues. According to the Sixth Circuit, the district court wrongly concluded that full-time presence was an essential function of Hostettler’s position. First, Hostettler was able to point to two employees who had received longer period of medical leave for non-pregnancy conditions. Further, and importantly, the Court held that an employer “cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule.” Without that, an employer is not relieved of its ADA responsibilities.

There’s an important lesson here: to avoid summary judgment on the “full-time presence as an essential function” issue, an employer must specifically tie time-and-presence requirements to some other work-related requirement, and optimally should have documentation of the same. Because Wooster failed in that regard – and simply said that Hostettler’s absence was “putting a strain on the department” – the case will go back to the district court for trial.



The European Union’s General Data Protection Regulation (GDPR) became effective on May 25, 2018. Companies have been working to understand the significance of those new rules, and to determine their effect on US companies.

The purpose of the GDPR is to harmonize certain data privacy laws within the European Union (including the UK, for now). But it also covers businesses outside of the EU to the extent that those businesses sell goods or services – or even offer to sell, or market the sale of goods or services – to EU residents. It also applies to businesses that “monitor” EU residents, regardless of the location of those businesses.

While compliance with the GDPR is going to take the coordinated effort of companies’ leaders, legal officers, and human resources departments (one of the highest risk areas for GDPR compliance will be the processing of human resources data), here are some basic facts to support the effort to understand the GDPR:

  • The GDPR applies to large corporations that collect, use, or even simply analyze “personal data” of EU resident consumers – but the regulations also apply to businesses with as few as a single EU customer or user;
  • “Personal data” is defined as including phone numbers, email addresses, location data, and/or any other identifier that would directly or indirectly point to a particular individual;
  • The GDPR does not apply to “anonymous information,” defined as information that does not relate to an identified or identifiable natural person (for example, for statistical or research purposes);
  • Whether the GDPR applies to an individual is determined not by citizenship, but by the individual’s residential location – for example, a US citizen residing in France would be included, but a French national living in the US would not;
  • A company covered by the GDPR must use “plain language” to explain to its users its collection methods and use of personal data, and must specifically state how long such data will be retained;
  • Affected companies must provide to EU resident users a way to (1) access and, at the individual’s option, correct/delete data; and (2) object to the use of particular data;
  • Companies or organizations also can be held liable for EU personal data misused by their business partners;
  • The regulations allow for a private right of legal action within the EU for violation of the rules, which means that companies outside of the EU that violate the GDPR could face legal actions within the court of an EU Member State based on as little as a single violation; and
  • The requirements for obtaining consent under GDPR are specific and onerous, and consent may be withdrawn by the data subject.

While these facts are only a portion of the information that should be reviewed and understood by companies who may be affected by the GDPR, there are many informative websites and articles available to assist in that compliance effort. Check out these 5:

Consider some other resources, from Ogletree’s blog on the topic:

If GDPR applies to your company, it is imperative to make good faith efforts to comply. Get started by making yourself knowledgeable through the available channels, developing a to-do list, and then assuring that it gets implemented appropriately. Good luck.


Thanks to Dani Vanderzanden from the Data Privacy Practice Group of Ogletree Deakins for her contributions to this article.

Image taken from eu gdpr portal.

The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) issues guidance to employers and individuals through Opinion Letters, Ruling Letters, Administrator Interpretations, and Field Assistance Bulletins. An “Opinion Letter” is an official written opinion by WHD of how a particular law that WHD enforces applies in specific circumstances presented by an employer, employee, or other entity requesting the opinion.

In 2010, the DOL abandoned the use of Opinion Letters, and Administrative Interpretations (AIs) took their place. Rather than responding to employer questions, the AIs essentially consisted of declarations of the administration’s position on various issues related to the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). The AIs – which came very infrequently – did not provide detailed answers to employers’ questions about day-to-day administration of the Fair Labor Standards Act FLSA and FMLA. From 2010 to 2016, the DOL issued a total of just seven AIs on the FLSA and two on the FMLA.

On June 27, 2017, the DOL resumed issuing Opinion Letters. These guidance letters from the WHD’s Administrator (or an Acting Administrator) provide a potential good faith reliance defense for actions that otherwise may constitute violations of law. In other words, an employer may act in reliance on a DOL Opinion Letter when making employment decisions regarding the certain federal laws on which Opinion Letters have been issued, specifically including the FLSA.

Keeping this fact in mind, employers should be aware of two new Opinion Letters issued on April 12, 2018 by Bryan L. Jarrett, Acting Administrator of the WHD.

  • The first (FLSA2018-18) is a letter regarding the compensability of travel time for hourly workers under the FLSA; and
  • The second (FLSA2018-19) addresses whether an employee’s medically required 15-minute breaks (taken as FMLA time) are compensable under the FLSA.

Compensability of Travel Time:

Under the FLSA, compensable work time generally does not include time spent commuting to or from work, even if the job site varies from day to day. However, unlike that commuting time, travel from job site to job site during a workday must be counted as hours worked for purposes of calculating hours paid.

Additionally, travel away from home (flying to out-of-town assignments or training, for example) is “worktime” when it cuts across an employee’s regular work hours, regardless of whether the travel is on a weekday or weekend. Therefore, a Sunday afternoon flight to a Monday assignment will be counted as “worktime” if the employee’s workday was 9-to-5, and the flight was between those hours on Sunday.

However, how is compensability of that travel time determined if there is no regular workday? The WHD says, in Opinion Letter FLSA2018-18, that an employer may use one of three ways to “reasonably ascertain an employee’s normal working hours” for purposes of calculating compensable travel time: (1) review work records to find “typical work hours” during the most recent month of employment; (2) determine the average start and end times for that month; or (3) negotiate and agree with the employee as to a “reasonable” amount of compensable travel time. According to the WHD’s Opinion Letter, when an employer uses one of these methods to determine normal working hours for the purposes of determining compensable travel time, the WHD “will not find a violation for compensating employees’ travel time only during those working hours.”

Compensability of FMLA-Related Rest Breaks:

The WHD’s second Opinion Letter, FLSA2018-19, addresses the question of whether a non-exempt employee’s 15-minute rest breaks, mandated by the employee’s health care provider and covered under the FMLA, are compensable or non-compensable under the FLSA.

Under the FLSA, short rest breaks of up to 20 minutes that “primarily benefit the employer” ordinarily are compensable. However, short rest breaks primarily benefitting the employee are not compensable. According to the WHD’s Acting Administrator, FMLA-protected breaks given to accommodate an employee’s serious health condition would be for the primary benefit of the employee. He further points out that the FMLA itself provides that such breaks may be unpaid.

However, the Opinion Letter also includes one significant point for employers: employees who take FMLA-protected breaks must receive as many compensable breaks as their coworkers receive. He provides this example:

. . . [I]f an employer generally allows all of its employees to take two paid 15-minute rest breaks during an 8-hour shift, and employee needing a 15-minute break every hour due to a serious health condition should likewise receive compensation for two 15-minute rest breaks during his or her 8-hour shift.

Post Script:

An Opinion Letter is an official document authored by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter. Opinion Letters represent official statements of agency policy, and can be relied upon to provide insight into how the DOL would interpret the application of the laws on which the letters offer guidance.

However, it also is important to note that each Opinion Letter includes a caveat stating that the opinion offered in any specific letter is based exclusively on the facts presented for the issuance of that particular letter. Therefore, employers should refrain from generalizing the decisions set forth in any letter, or attempting to extrapolate or stretch the opinion to fit facts that are not the same as those addressed in the Opinion Letter.