The Employer's Legal Resource - July 2010

At long last, the Oklahoma Department of Labor has revised its position on electronic payment of wages to reflect common practices and a more accurate interpretation of the law. The ODOL website now advises viewers that an employer may require employees to accept wage payments by direct deposits to bank accounts. Although the payroll statute was modified in 2006 to allow payment by electronic means, the ODOL consistently took the position that direct deposit was always at the employee's option. The ODOL based its position on an Attorney General's Opinion from 1966, an era in which direct deposits were unknown. Fortunately for employers, the Attorney General has issued a new Opinion, based in large part on the federal Electronic Funds Transfer Act. Federal regulations issued under the EFTA provide that an employer may require direct deposit of wages by electronic means as long as the employee is allowed to choose the institution that will receive direct deposits. The Opinion warns, however, that the EFTA prohibits an employer from requiring an employee to receive wages through a payroll card account. This is a payment option left entirely to the employee.

The Opinion, which was requested and has been adopted by the Oklahoma Commissioner of Labor, goes on to discuss pay stubs. The Oklahoma statute requires that an employer must issue to each employee a brief itemized statement of any and all deductions from the payment of wages. Although the ODOL had in the past taken the firm position that this statement of deduction must be given in paper form, the Attorney General's Opinion interprets the statute diffearently. According to the Opinion, the form in which this statement is given will depend upon the ability of the employee to receive it. So, if your employee provides you with an email address, you may issue an electronic pay stub by email. The Opinion warns, however, that it is not permissible to merely place the statement on a website where the employee will have to retrieve it.

What do you do if the employee does not have (or doesn't want to provide you) an email address? Some employers have coaxed their employees into accepting electronic pay stubs by providing the information before payday so that problems can be worked out in advance, by providing additional information on the electronic pay stub, or providing the paper pay stub only through the mail, rather than through office distribution. Other employers have assigned all employees an email address within the business and established a kiosk at the workplace so that those employees who don't sit in front of a computer all day can then check their email for their electronic pay stub.

Now that the ODOL has reluctantly adopted electronic pay stubs, we expect more employers to use them. They're green and save you money.

By Rebecca M. Fowler, rfowler@dsda.com

The U.S. Department of Labor has recently provided an official Administrator's Interpretation of the FMLA, which allows for leave because of the birth of a child, placement for adoption or foster care of a child, or to care for a child with a serious health condition. The FMLA defines "son or daughter" to include "a child of a person standing in loco parentis." Employers and courts have struggled to determine when an employee stands "in loco parentis" to a child. The new Administrator's Interpretation provides guidance as to when an employee with no biological or legal relationship with a child may take FMLA leave for reasons relating to the child.

The Interpretation clearly indicates that "employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave." The determination of in loco parentis status is a "fact issue dependent upon multiple factors," including the age of the child, the degree to which the child is dependent on the person claiming in loco parentis status, the amount of financial support provided, if any, by the person claiming in loco parentis status, and the "extent to which duties commonly associated with parenthood are exercised" by the person claiming in loco parentis status. The fact that a child has a biological parent in the home does not prevent an employee from having in loco parentis status with respect to that child. The key inquiry is whether the employee has demonstrated an intent to assume parental status and/or discharge parental-type duties. According to the Administrator's Interpretation, it is sufficient if the employee provides either day-to-day care or financial support for the child. The Interpretation indicates that unmarried partners, same sex partners, and step-parents may all assume in loco parentis status depending on a showing of some or all of these factors.

By Courtney Bru, cbru@dsda.com

In Duvall v. Georgia Pacific, the Tenth Circuit Court of Appeals, which governs Oklahoma, clarified an employer's duties under the ADA requiring reasonable accommodations for disabled employees.

Mr. Duvall suffered from cystic fibrosis. He sought to be reassigned to a previous job in the paper mill's shipping department. However, the position was occupied by a temporary contract worker pending the mill's outsourcing of its shipping. Mr. Duvall sued Georgia Pacific under the Americans with Disabilities Act for refusing his request. The ADA prohibits employers from discriminating against a qualified individual on the basis of disability with regards to the terms, conditions, and privileges of employment. Within its definition of discrimination, the ADA includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, including reassignment to a vacant position.

The Tenth Circuit has imposed a duty on employers to reassign qualified employees with a disability to vacant positions as long as the accommodation is reasonable. The duty requires employers to offer the employee the vacant position, not merely consider the employee alongside other applicants. In the case brought by Mr. Duvall, the Tenth Circuit further clarified an employer's duty by defining the term "vacant" under the ADA.

The Court held that a position is "vacant" with respect to a qualified employee with a disability if it would be available for a similarly-situated employee without a disability to apply for and obtain. Employers are not required to create new positions specifically to accommodate employees with a disability. The Tenth Circuit's decision only requires employers to treat employees with disabilities the same as other employees with regards to reassignment.

Because the position Mr. Duvall sought was not open to other employees, it was not a "vacant" position to which Georgia Pacific could assign him.

By Kenneth T. Short, kshort@dsda.com

Training

In April, OSHA issued a policy statement regarding your training standards. Basically, the policy statement is to remind employers that when you are training or instructing employees regarding safety and health issues, you must do so in a manner that the employees can understand. There are two main components to this:

• Training and instruction must be in a language understood by the employee. If you have non-English-speaking employees, you must train and instruct in a language they understand. For Hispanic employees, OSHA has set up a site here to assist with your training efforts.
  
  
• Training and instruction must use vocabulary understood by the employee.

Severe Violator Enforcement

If you are a repeat offender, OSHA is increasing its focus on you. On June 18, OSHA announced a Severe Violators Enforcement Program (SVEP) intended to increase enforcement efforts on employers who repeatedly and/or willfully endanger workers.

By Kristen L. Brightmire, kbrightmire@dsda.com

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