Wyatt Employment Law Report


Can Employers Limit Off-Duty Activities and Travel During the COVID-19 Pandemic?

Written by:  Meredith L. Eason

Most employers have implemented new policies to comply with OSHA’s requirement to provide a safe workplace and to limit the spread of COVID-19.  These new policies typically include enhanced cleaning procedures, facemask and social distancing requirements, and limitations on business travel and in-person meetings.  Many employers wonder whether they can legally take these policies a step further and place restrictions on their employees’ behavior outside the workplace, particularly if they believe the employee is engaging in risky travel or other behavior that may increase their likelihood of contracting the virus.  Unfortunately, as with most questions surrounding this pandemic, the answer is that it depends. Continue reading


Free Speech in the Workplace

by Tyson Gorman, with significant contributions by 2020 Summer Associate, Joseph Profancik

So far, the year 2020 has once again exceeded our wildest expectations. On the heels of tragedy in Minneapolis and Louisville, protests across the nation have erupted in unprecedented support of social justice. Earlier this week, Starbucks made headlines after they refused to allow their employees to sport any paraphernalia that supported the “Black Lives Matter” movement. In a memorandum that sought to justify its actions, the company stated that “there are agitators who misconstrue the fundamental principles of the ‘Black Lives Matter’ movement — and in certain circumstances, intentionally repurpose them to amplify divisiveness.” Continue reading


PPP Forgiveness Application Published

By Christopher R. Hanewald

After weeks of anticipation, the Paycheck Protection Program’s (PPP) Loan Forgiveness Application has been issued by the Small Business Association (SBA) and Treasury Department. Borrowers—and their accountants—will begin to work through the 11-page application and instructions to determine what proportion of their PPP loan will be converted to a tax-free grant. Unfortunately, similar to the initial confusion and frustration surrounding the roll-out and loan application process for the PPP in early April, the application for forgiveness is anything but simple. Continue reading


EEOC Questions and Answers for Reopening Employers

By Julie Laemmle Watts

The Equal Employment Opportunity Commission (“EEOC”) continues to update its guidance for employers in its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” questions and answers on a host of topics, including topics that are important for employers who are beginning the process of reopening. Some of these topics include: Disability-Related Inquiries and Medical Exams; Confidentiality of Medical Examination; Reasonable Accommodation; and Return to Work. Continue reading


New Kentucky Law Ensures That Employees Can Be Required To Arbitrate Claims

By Michelle Wyrick

On March 25, 2019, Governor Bevin signed legislation providing that an employer may require an employee to sign an arbitration agreement as a condition of employment. The legislation, which amends KRS 336.700, is designed to reverse the Kentucky Supreme Court’s decision in Northern Ky. Area Development Dist. v. Snyder,  2017-SC-000277-DG (Ky. 2018), which held that employers may not condition employment upon execution of an arbitration agreement.
Continue reading


Payments and Perks: the DOL Announces a Proposal to Clarify What Qualifies as Overtime

By Marianna Michael

On Thursday, March 28, 2019, the U.S. Department of Labor (“DOL”) announced proposed changes to the overtime provisions of section 7(e) of the Fair Labor Standards Act.  In its current form, the statute generally requires employers to pay overtime if workers work more than 40 hours a week.  One exemption to the overtime rule includes the salary basis exemption, where employees generally must be paid at least $455 per week on a salary basis, unless they are outside sales employees, teachers and employees practicing law or medicine.

accounting-blur-budget-128867Overtime pay is equal to one and one half times the regular rate of pay.  In designating what is included under the regular rate of pay, the current provision makes a distinction between payments and perks.  With the proposed provision, the DOL seeks to clarify what qualifies as either a payment or perk in an attempt to discourage employers from offering incentives that are excluded from the calculation of overtime pay.

The proposed changes confirm that the following types of employer-provided benefits may be excluded from the regular rate of pay:

  • the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes and employee discounts on retail goods and services;
  • payments for unused paid leave, including paid sick leave;
  • reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
  • reimbursed travel expenses that do not exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements;
  • discretionary bonuses;
  • benefit plans, including accident, unemployment and legal services; and
  • tuition programs, such as reimbursement programs or repayment of educational debt.

This proposal is published for public comments and will remain open until May 28, 2019.  Comments may be submitted to the Notice of Proposed Rulemaking at www.regulations.gov. More information is available here.


Comment Period Open for DOL’s Proposed Salary Increase

By Sharon Gold

The Office of the Federal Register officially published the Notice of Proposed Rulemaking (“NPRM”) raising the salary minimum for exempt workers that we discussed last week.  The NPRM proposes to raise the minimum salary for exempt workers to $35,308 per year ($679 per week), from the current minimum of $23,660 per year ($455 per week).  The NPRM also raises the highly compensated minimum to $147,414 per year, up from the current minimum of $100,000.  Once a proposed rule is officially published, the 60 day comment period is open.  Employers have until May 21, 2019 to comment.  The link to comment is available here.

If the Rule is finalized, it is estimated that 1.1 million workers will have their salaries raised to the minimum or will be eligible for overtime.