The Employer's Legal Resource - July 2011
|
Once again, the Oklahoma legislature has enacted changes to the Workplace Drug and Alcohol Testing Act. House Bill 2033, approved by the Governor on May 9, 2011, makes numerous changes to Oklahoma's drug and alcohol testing laws. The new laws go into effect on November 1, 2011. The new law contains a number of changes favorable to employers. Notably, it makes it easier to implement a drug and alcohol testing program. Under the new law, employers are not required to provide a specific listing of the substances to be tested. Instead, employers can simply state that they test employees and applicants for drugs and alcohol. Additionally, employers are not required to wait 30 days after implementing a program to begin testing employees. Now, employers only have to wait 10 days. The new law no longer requires employers to offer an Employee Assistance Program ("EAP"). The new law also eliminates any possible criminal penalties for a violation of the statutes by an employer and limits an employee's ability to sue an employer for a violation. Under the new law, the statute of limitations has been changed from two years to one year and compensatory damages are not recoverable. The only available remedi es under the new law are lost wages and liquidated damages. However, not everything has changed. The new law still permits employers to conduct the following testing: applicant testing, for-cause (formerly called "reasonable suspicion") testing, post-accident testing, random testing and scheduled/periodic testing. The new law stills require the employer to pay for all costs associated with testing and to pay the employee for time spent traveling to an off-site testing facility. Additionally, employers must still maintain all drug and alcohol testing records in a confidential manner. Most importantly, in order to test employees and applicants for drugs and alcohol, employers must still have a written policy that complies with Oklahoma law. For those employers who have previously struggled with how to handle the situation of its contractors' employees, the new law addresses this as well. Bottom line. If you are testing employees in Oklahoma (and not under the Department of Transportation regulations), you will need to review your policy and practices before November 1 to ensure you are in compliance with the new law. Our employment group is always available to answer any questions or concerns about the validity of your drug and alcohol testing policy. By Kenneth T. Short, kshort@dsda.com
The Fair Labor Standards Act ("FLSA") entitles employees to overtime pay for hours worked in excess of forty hours per workweek. The overtime pay must be at least one-and-one half times the "regular rate" of pay. Bona fide professionals, however, have no right to overtime pay. Bona fide professionals are those who perform work requiring knowledge of an advanced type in a field of science or learning that is customarily acquired by specialized intellectual instruction, and who are also compensated at least $455 per week on a "salary or fee basis". If the employee is licensed to practice medicine, however, an exception applies: the employee may be considered a bona fide professional with no right to overtime pay even if she is paid by the hour and not paid a salary or fee. While medical doctors, podiatrists, dentists and optometrists are subject to the exception, the U.S. Department of Labor, which administers the FLSA, has determined that pharmacists, nurses, therapists, technologists, dieticians, social workers, psychologists, and "other professions which serve the medical profession" are not covered by the exception. Accordingly, the latter are entitled to overtime pay unless they are paid a s alary or a fee. So, where does a Physician's Assistant ("PA") or Nurse Practitioner fall in this scheme? In a recent case before a federal court in Pennsylvania, a PA who had always been paid by the hour claimed the right to overtime pay. At issue was whether the PA should be considered tantamount to a physician who would not be entitled to overtime pay, or to a professional "which serves the medical profession" who would be entitled to overtime pay if she were not paid a salary or fee. The employer argued that the PA qualified for the exemption because she was licensed to practice medicine under physician supervision. The court rejected the argument and held that PAs and Nurse Practitioners are "other professionals who service the medical profession" and held that they must be paid on a "salary or fee" basis in order to be exempt from overtime pay. Consequently, even though the PA had the training and did t he work of a professional, she was entitled to overtime pay because she had been paid by the hour. If you employ PAs or Nurse Practitioners, take a look at your compensation structure to determine whether you are compensating them on a "salary or fee" basis. If you need help, call us. By Rebecca M. Fowler, rfowler@dsda.com
Let's re-cap. Federal Law. If you employ a minimum number of employees (often 15 or 20), an employer can be sued if it discriminates against an employee or applicant on the basis of race, color, national origin, sex, religion, creed, age, disability, or genetic information. You remember the laws: Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, etc. Oklahoma Common Law (a law declared by the Oklahoma courts). In addition, Oklahoma allowed a lawsuit to be brought for wrongful discharge (but not other forms of discrimination such as failure to hire). For decades, Oklahoma required that the employer have the same number of employees as under the various federal laws in order to be sued for wrongful discharge. Then, in 2009, the Oklahoma Supreme Court decided that any Oklahoma employer, regardless of the number of employees, could be sued for wrongful discharge. Oklahoma Statutory Law (a law passed by the Oklahoma Legislature and approved by the Governor). Well, now the Oklahoma Legislature has weighed in as well. A new law will go into effect on November 1, 2011, which provides Oklahoma employees with even more ways to sue their employer. The new law provides remedies for persons alleging "discrimination in employment on the basis of race, color, national origin, sex, religion, creed, age, disability, or genetic information." A couple of things you'll want to know:
In short, Oklahoma has passed a law in which it tries to mimic all the protections provided by federal law with one notable difference - it applies to all employers, regardless of its size. By Kristen L. Brightmire, kbrightmire@dsda.com
What's New Doerner Saunders has 21 attorneys listed in Best Lawyers in America Twenty-one (21) of the firm's lawyers were recently selected for inclusion in The Best Lawyers in America® 2011 (Copyright 2010 by Woodward/White, Inc., of Aiken, S.C.). They are, in alphabetical order: William C. Anderson, mailto:wanderson@dsda.com Sam G. Bratton II, sbratton@dsda.com Jon E. Brightmire, jbrightmire@dsda.com Kristen L. Brightmire, kbrightmire@dsda.com Lawrence T. Chambers, lchambers@dsda.com H. Wayne Cooper, hwcooper@dsda.com Kevin C. Coutant, kcoutant@dsda.com Sam P. Daniel, Jr., sdaniel@dsda.com S. Douglas Dodd, sddodd@dsda.com Tom Q. Ferguson, tferguson@dsda.com David J. Hyman, dhyman@dsda.com G. Michael Lewis, mlewis@dsda.com Ron W. Little, rlittle@dsda.com Linda C. Martin, lmartin@dsda.com David McCullough, dmccullough@dsda.com Michael Minnis, mminnis@dsda.com Leonard I. Pataki, lpataki@dsda.com William F. Riggs, wriggs@dsda.com Robert E. Spoo, rspoo@dsda.com Varley H. Taylor, Jr., vtaylor@dsda.com Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Doerner Saunders Adds Three Partners Doerner Saunders has added three partners - Stuart D. Campbell, David H. Herrold and Ron W. Little - to its Tulsa office. With more than 25 years of practice in transportation law, sports and entertainment law, public utility litigation and Indian gaming law, Stuart Campbell is a member of the Transportation Lawyers Association and the Trucking Industry Defense Association. David Herrold's 15-year body of practice emphasizes commercial litigation, banking, lender liability and commercial law, creditor's rights and bankruptcy law. He has been recognized as an Oklahoma "Super Lawyer" in the areas of business litigation, business/corporate, bankruptcy and creditor/debtor rights. Ron Little's nearly 20 years of expertise center on family law litigation in Oklahoma and Texas, a subject on which he has published numerous articles. He is listed in Best Lawyers in America in the family law practice area. Welcome Stuart, David, and Ron. Fowler and Rambach publish Update on Oklahoma Tax Developments Doerner Saunders' attorneys, Rebecca M. Fowler and Jeffrey C. Rambach, recently submitted an Update on Oklahoma Tax Developments for the Council on State Taxation (COST) Income Tax Conference/Spring Audit Session, held May 22-25, 2011 in Albuquerque, New Mexico. This update is put on the COST website for attendees of the conference to use as a reference and contact for their particular state of issue. In addition, the update is provided to attendees of one of over 25 COST's regional meetings each year. COST is the premier state tax organization / nonprofit trade association consisting of nearly 600 multistate corporations engaged in interstate and international business.
Dates to Remember July 4, 2011 Independence Day August 4, 2011 Lance Bryan will speak at the National Business Institute seminar, Boot Camp: Foreclosure and Loan Workout Procedures, at the Renaissance Tulsa Hotel & Conference Center. Mr. Bryan will be conducting a step-by-step workshop on the foreclosure process and its legal considerations, forbearance agreements, and receiverships. To register for the seminar, click here. For more information, please contact Lance Bryan, lbryan@dsda.com, 918-591-5256.
To sign up for additional newsletters or to edit your contact information, please click here. |
