Rethinking the 24/7 Response

Always connected. Always available. Always responsive. In an era where personal electronic devices have become more of a technological appendage than merely a handy gadget, a growing number of employers are grappling with the question of how well-connected their employees should be. Employers certainly benefit from the ability of employees to be available at all times and through instantaneous connection. The instant problem is the way in which this constant connectivity begins to warp the work-life balance. Should employees respond to employment-related emails after hours? Should they text back to the boss in the evenings to respond to work inquiries? Should employers expect employees to be responsive around the clock? Some employers are beginning to change their expectations for employee responsiveness after hours, and possibly just in time to stave off impending wage and hour law implications.

Mobile devices, wireless communication technology and internet web concept: business laptop or office notebook, tablet computer PC and modern black glossy touchscreen smartphones with colorful application interfaces isolated on white background

Vynamic, a health care consulting firm in Philadelphia, has been in the spotlight lately for a practice it refers to as “zmail.” The company bans the sending and receiving of email from 10 p.m. to 6 a.m. on weekdays and all weekend. It does this, it says, to reduce employee stress by providing a safe harbor for employees to rest and not contemplate workplace communications. The company reports less than 10% attrition in the last few years, so maybe this type of policy is working. Employees are not just given time in the evenings and weekends to relax, they are actually banned from communicating on work-related matters. This is not a ban on doing actual work for the company if the employee so desires, but it is a way to ensure that employees are receiving a legitimate break from the office.

Such measures will become increasingly important when the Department of Labor issues its final rule on the revised overtime exemption sometime in 2016. Under the new regulations, the minimum salary level for the “white collar” overtime exemption to take effect will more than double from the current level of $23,660. That means more than an estimated 5 million employees will suddenly require overtime pay for work done after hours. Reading and responding to email and texts and taking work-related calls will become activities that can create liability for employers that don’t adequately compensate non-exempt employees for such tasks once the new regulation takes effect.

Employers should begin to re-evaluate policies concerning after-hours work-related communication of employees, as the new regulations will likely prompt a sea change in how employees are compensated for what may seem like minor actions on behalf of the workplace done after the standard 40-hour workweek has been logged. Policies like “zmail” and even the shuttering of email servers during certain hours will become increasingly ubiquitous when the possibility of overtime liability becomes ever-present. The attorneys of McBrayer can assist employers with evaluating such policies in light of the impending overtime regulations, providing clear advice to reduce overtime liability and ensure regulatory compliance.

Amy CubbageAmy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or

This article is intended as a summary of state and federal law and does not constitute legal advice.

Obama Orders Paid Sick Leave for Federal Contractors

On Labor Day, appropriately enough, President Obama issued an executive order establishing up to seven days of paid sick leave for employees of federal contractors and subcontractors. The order was drafted and proposed in early August and issued on September 7th, capping off the White House’s push of its “Lead on Leave” initiative.

The order requires paid leave to employees for their own health care; to care for a family member such as a child, parent, spouse, domestic partner or other family member or close companion; or to seek medical attention, counseling, other assistance from a victim services organization or to take legal action in the case of domestic violence or sexual assault. Under this order, paid leave that accrued to an employee that separated from the employer would be reinstated to that employee if the employee is rehired within 12 months.

Sick Woman Sleeping In BedroomThe order has a bit of breathing room until it takes effect, as it applies only to government contracts for services, construction or concessions entered into after January 1, 2017. The Department of Labor has a deadline of September 30, 2016 to craft regulations to implement the order, delineate its scope and provide guidance to federal contractors and subcontractors for compliance.

Executive orders with regard to federal contractors or employees have been the implementation testing ground for initiatives such as the recognition of same-sex partner benefits and minimum wage increases, policy changes the administration would like to see take place on broader scales. The effective date of the order gives some consideration to the idea that the order may be of short effect pending the outcome of the 2016 presidential election, but employers under government contracts should be begin the process of compliance now regardless by revising budgets and reevaluating bids for contracts that would be effective after the effective date in the order. The attorneys of McBrayer can assist government contractors with the preparation and implementation of paid sick leave regulations to be ready when they become effective.

Luke WingfieldLuke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

Second Circuit: An Internship is an Internship

Recipients of the benefits of unpaid intern labor everywhere recoiled in horror in June of 2013 when a Federal District Court Judge in Manhattan held that unpaid interns on the set of the film “Black Swan” were protected by minimum wage and other employment laws. Since then, employers have been looking at that college kid earning “valuable work experience” by bringing them their coffee with a wary eye. Fret not, employers, for the Second Circuit has overturned the results in the “Black Swan” case (better known as Glatt, et al. v. Fox Searchlight Pictures, Inc.) while simultaneously rejecting a Department of Labor test for unpaid internships in a deft display of legal agility and coordination that can only be described as “balletic”.

Human resource concept Young businessman holding white billboard with a question mark on it and waiting for job interview asian people

In Glatt, the District Court relied on a six factor test issued by the Department of Labor in 2010 that defined how unpaid interns are classified for purposes of federal wage and hour law. These six factors were not created out of whole cloth by the DOL, but rather culled from a 1947 Supreme Court decision involving unpaid railroad brake trainees, Walling v. Portland Terminal Co. Under the DOL test, the relationship between employer and intern must meet all six criteria to be exempt from wage and hour laws.

The Second Circuit in Glatt found the DOL test too restrictive, instead laying out its own non-exhaustive list of considerations for unpaid internships:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee — and vice versa
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands‐on training provided by educational institutions
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

For those concerned that the District Court’s ruling in Glatt signaled the end of unpaid internships, the Second Circuit’s reversal of that decision should spell relief. Rather than enforce a set of six inerrant rules as to interns, the court opted for a middle ground that provides a flexible framework for crafting legal internship programs with an education bent.

Employers should still be wary – this decision only applies in the Second Circuit for now, so other circuits may choose to follow the Department of Labor guidelines. The Sixth Circuit, for instance, has taken a somewhat softer stance than other circuits on whether unpaid volunteers qualify for the antidiscrimination protections of Title VII of the Civil Rights Act of 1964, which could signal a more sympathetic ear in general to the plight of unpaid workers.

For more information on unpaid internships in relation to federal, state and local employment laws, contact the attorneys of McBrayer.

D. TrimbleAndrew H. Trimble is an associate in the Lexington, Kentucky office. Mr. Trimble focuses practice on general litigation, employment law and criminal defense. Mr. Trimble can be reached at (859) 231-8780, ext. 136 or

How Much Time Can New Parents Take Off?

Paid leave for new parents, both mothers and fathers, has been in the headlines as of late as the U.S. Department of Labor promotes its “Lead on Leave” initiative. The question for employers, however, is just how much time may an employee take off for the birth or adoption of a child. Luckily, the Family and Medical Leave Act (“FMLA”) answers the question almost entirely by itself.

Attractive Pregnant EngineerEligible employees (more on this in a minute) may take up to 12 weeks of leave to care for a newborn child or a newly placed adopted or foster child. This leave is unpaid, and an employer may require that an employee use all accrued paid leave while FMLA leave is taking place. During this leave, however, the employee’s job is protected by the FMLA. The provisions of this law apply both to mothers and fathers, allowing both parents the opportunity to bond with the new child while protecting their employment status.

There is one catch to FMLA leave, and that’s that an employee must be eligible to take the leave. This means that he or she must have worked at least 12 months for that particular employer, accumulating at least 1,250 hours of employment during that time period before the start of the leave. The employer must also have more than 50 employees employed within 75 miles of the worksite where the employee is requesting FMLA leave.

Kentucky does not have any laws that require private employers to provide leave for new parents. Kentucky’s Adoption Leave Law at KRS §337.015 does provide an employer must grant an employee up to six weeks of leave for the adoption of any child under the age of seven. This law applies to any size of employer, unlike the FMLA.

Leave provided by law to new parents is limited almost entirely to the FMLA, which contains multiple limitations. Employers may offer more generous leave, but nothing in federal law or Kentucky state law (with the Adoption Leave Law exception) requires employers to offer more than 12 weeks of unpaid leave for eligible employees. For more information on employer leave policies concerning leave for new parents, contact the attorneys of McBrayer.

B. JohnsonBrandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

EEOC: Title VII Prohibits Employment Discrimination Based On Sexual Orientation

The recent U.S. Supreme Court decision in Obergefell v. Hodges struck down restrictions on marriage by same-sex couples, but it did not address other forms of discrimination based on sexual orientation, such as in employment. The Equal Employment Opportunity Commission, however, did not wait for a ruling from the high court, instead ruling on its own that Title VII of the Civil Rights Act of 1964 prevents discrimination in an employment context on the basis of sexual orientation. This decision, Baldwin v. Foxx,[1] broadens Title VII protections considerably, although it remains to be seen if the high court agrees with the EEOC interpretation.

ExpelThis is the first true decision from the EEOC on the application of Title VII to sexual orientation, and the agency found that prohibitions on sex discrimination under the law inherently apply to sexual orientation as well. The agency extended Title VII protection based on sex discrimination on the grounds that sex and sexual orientation are inherently inseparable, sexual orientation discrimination is a form of impermissible associational discrimination, and sexual orientation discrimination often occurs on the basis of sex stereotypes, a prohibited form of discrimination under U.S. Supreme Court Title VII interpretation.

This is not, however, the first time the EEOC has spoken to the topic of providing Title VII protection to sexual orientation. In October of 2014, the EEOC submitted a friend-of-the-court brief with the 7th Circuit Court of Appeals in the case of Muhammad v. Caterpillar,[2] putting forth the interpretation of Title VII that it adopted in Baldwin. This, too, came after the agency ruled in 2012 in the case of Macy v. Holder,[3] that Title VII prohibitions on sex discrimination applied towards transgender individuals as well. With this in mind, the official EEOC interpretation in Baldwin is new, but not surprising.

Though Title VII does not explicitly prohibit discrimination based on sexual orientation in its text, the EEOC interpretation will likely control for the time being, and employers should be wary about taking sexual orientation into account during the hiring process or in adverse employment decisions. Kentucky does not explicitly prohibit such discrimination directly, but Lexington, Louisville and Morehead have such ordinances, and many smaller municipalities are adopting similar prohibitions on an ongoing basis. The attorneys of McBrayer can assist employers with implementing nondiscrimination policies to prevent liability under new EEOC interpretations of Title VII. Contact us today!

B. KochBrittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

[1] Baldwin v. Foxx, FAA-2012-24738 (EEOC June 15, 2015).

[2] Muhammad v. Caterpillar, 767 F.3d 694 (7th Cir. 2014).

[3] Macy v. Holder, No. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012).

Surprise! That Independent Contractor is an Employee!

The Department of Labor (“DOL”) has given employers some bitter pills to swallow lately, especially in light of the proposed rule concerning new restrictions on the white collar overtime exemption. With a new set of guidance on the classification of independent contractors, the streak of DOL heartburn for employers continues unabated.

On July 15, DOL Administrator David Weil issued an Administrator’s Interpretation that said “most workers [who are classified as independent contractors] are employees under the FLSA’s broad definitions.” The guidance turns on language in Fair Labor Standards Act (“FLSA”) that the word “employ” is defined to include “to suffer or permit to work.” This definition, along with the “economic realities” test espoused by the Supreme Court and the Circuit Courts of Appeals, broadens the scope of workers covered by FLSA, preempting the common law “control” test which looked only to the employer’s control over the worker.

Hand With Pen And Eyeglasses Over AgreementUnder the “economic realities” test, several factors affect the analysis of the employee-worker relationship, such as the extent to which the work is an integral part of the employer’s business, the worker’s opportunity for profit or loss, the extent of the investments of the employer and the worker, whether the work requires special skills, the permanency of the relationship and the degree of control exercised by the employer. Under this set of factors, courts generally regard independent contractors as those who operate a separate business and are economically independent from the employer. Those who are economically dependent on the employer are employees where the FLSA is concerned, according to the DOL guidance.

The guidance concludes that the FLSA’s language of “to suffer or permit to work,” interpreted through the “economic realities” test, is significantly broad, and as a result, the DOL concludes that most workers are employees under the FLSA. The defining question in this calculus is whether the worker is truly in a separate business that is independent economically from the employer. If the worker is economically dependent on the employer, the worker is an employee in the DOL’s eyes.

The dangers of misclassification of employees are numerous (and the subject of another McBrayer blog post), and this new guidance gives insight into how the DOL will view employee and independent contractor classification going forward. Employers that rely heavily on independent contractors or hire workers as individual independent contractors in particular should review those work arrangements with the factors of the “economic realities” test in mind, as well as consider the consequences of not adding those workers to the employee roster. For assistance with classification of employees, or for more information on the importance of employee classification, contact the attorneys of McBrayer.

C. Effinger

Cynthia L. Effinger, attorney with McBrayer, McGinnis, Leslie & Kirkland, PLLC is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger can be reached at or (502) 327-5400.

This article is intended as a summary of  federal and state law and does not constitute legal advice.