Employer Advisor

U.S. Department of Labor Admistrative Review Board Issues Ruling Clarifying Obligation to Reimburse Lodging Expenses

By: Tom Revnew

On April 29, 2015, in Weeks Marnie, Inc., ARB Case Nos. 12-093, 12-095, the U.S. Department of Labor Administrative Review Board (ARB) issued a ruling clarifying when a contractor performing on a federally funded or assisted contract must reimburse its employees for lodging expenses under the Davis-Bacon Act (DBA).

In Weeks, the U.S. Army Corps of Engineers awarded Weeks Marine (Weeks), a marine construction and dredging contractor, a contract for the maintenance, dredging, and beach replenishment of the Fire Island Inlet in Fire Island, NY. The contract was subject to the DBA, the Contract Work Hours and Safety Standards Act (CWHSSA), certain Department of Labor (DOL) provisions, as well as the Collective Bargaining Agreements (CBAs) that Weeks entered into with Local 25 and Local 138.

The project began in November 2007 and ended in April 2008. Weeks was required to complete the project in a timely manner or else be subject to liquidated damages. Thus, the project was typically in operation 24 hours a day, and employees generally worked seven days a week with no days off.

To complete specialized dredging work on the project, Weeks employed nine Local 25 members who did not live within daily commuting distance of Fire Island, NY. To secure and maintain their employment the Local 25 employees were required to travel to and temporarily reside in on-site hotels and motels. Neither the CBA nor the project contract required Weeks to reimburse the Local 25 employees for their lodging. However, under the CBA, Weeks did pay each of them $35 per diem ($245 per week) for meals, lodging, and incidentals. The $245 received each week was insufficient to cover lodging expenses of the Local 25 employees and they were forced to pay those expenses out of pocket.

In 2008, the Wage and Hour Division (WHD) notified Weeks that it was in violation of the prevailing wage requirements of the DBA because it failed to reimburse the Local 25 employees for lodging expenses incurred while working on the Fire Island project. WHD determined that those employees were owed $21,831.35 for their unreimbursed lodging costs.

In 2012, an Administrative Law Judge (ALJ) issued a Decision and Order finding that Weeks’ failure to reimburse the Local 25 employees for their lodging costs above the $35 per diem violated the DBA. However, the ALJ reduced the amount of damages owed to $9,058.84, which was calculated based on the lowest available lodging rate incurred rather than actual lodging rates incurred.

On appeal, the ARB distilled the issue presented as “whether an employer is obligated under 40 U.S.C.A. § 3142 of the Davis Bacon Act to reimburse lodging expenses incurred by employees who exclusively work for the employer at a job site beyond commuting distance from their home residence.” In order to make this determination, the ARB explained that a fact-specific balancing test must be used. Specially, it must be determined whether the Local 25 employees' on-site, away-from-home lodging was primarily for the benefit and convenience of Weeks or primarily for the benefit of Local 25 employees. If the evidence supports a finding that the lodging was primarily for Weeks' benefit and convenience, the company must reimburse the employees, because the failure to do so would constitute a de facto and unlawful deduction in the employees' prevailing wages. On the other hand, if the lodging was primarily for the benefit of the employees, Weeks would not be required to pay reimbursement provided that Weeks can also establish that it regularly furnishes such lodging to all of its employees or that the same or similar facilities are customarily furnished by other employers in the dredging business.

Here, the ARB ultimately determined that the underlying ruling of the ALJ did not provide the necessary facts or evidence to complete the required balancing test and the case was remanded. The ARB, however, did order that should the ALJ find reimbursement to be appropriate; such reimbursement should be calculated using the actual lodging expenses of the Local 25 employees (minus the $35 per diem), rather than the lowest available rate.

For more information on this article, please contact the author, Thomas Revnew, at trevnew@seatonlaw.com, 952-921-4622, or any attorney at Peters, Revnew, Kappenman & Anderson, P.A.

OSHA Publishes New Guide on Restroom Access for Transgender Employees
By: Michael Link

At the request of the National Center for Transgender Equality, the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) has published a new guide to assist employers with the issue of providing appropriate restroom access to transgender employees. Although the “Guide to Restroom Access for Transgender Workers” is not a new OSHA standard or regulation and does not create new legal obligations, it provides useful guidance for employers, including the following list of best practices:

  • All employees should be permitted to use the restroom facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use the men’s restrooms, and a person who identifies as a woman should be permitted to use the women’s restrooms. The employee should determine the most appropriate restroom for him- or herself.
  • Employees may also choose, but are not required, to use single occupancy gender-neutral (unisex) facilities or multiple-occupant, gender-neutral facilities with lockable single occupant stalls.
  • Employees should not be asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities.
  • No employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status.

The new OSHA guide also provides a model employer policy and limited discussion of applicable federal, state, and local laws. It is available online at www.osha.gov.

For more information on this article, please contact the author, Michael Link, at mlink@seatonlaw.com, 952-921-4604, or any attorney at Peters, Revnew, Kappenman & Anderson, P.A.

U.S. Supreme Court Holds No Knowledge Requirement in Title VII Disparate-Treatment Claims

By: Michael Link

On June 1, 2015, the U.S. Supreme Court made it easier for job applicants to bring Title VII claims against employers for refusal to hire because of the applicant's religious practices.

In EEOC v. Abercrombie, No. 14-86, the Court reversed the Tenth Circuit’s holding that employers cannot be liable under Title VII for failing to accommodate a religious practice until the employer has actual knowledge of the applicant’s need for an accommodation. Instead, the Court held that an applicant must only show that his or her need for an accommodation was a motivating factor in the employer’s decision.


The Equal Employment Opportunity Commission (EEOC) filed suit against Abercrombie on behalf of Samantha Elauf, a practicing Muslim who wears a headscarf as part of her religious requirements, after Abercrombie denied her a job because her headscarf conflicted with its dress code policy. Specifically, the company’s “Look Policy” prohibited employees from wearing “caps.”

Following her employment interview, Elauf received a rating that qualified her to be hired according to Abercrombie’s ordinary system for evaluating applicants. However, the store’s assistant manager thought Elauf’s headscarf might violate Abercrombie’s "Look Policy" and sought clarification from the store manager and the district manager. In doing so, the assistant manager informed the district manager that she believed Elauf wore the headscarf as part of her faith. The district manager ultimately determined that Elauf’s headscarf violated the "Look Policy" and directed that she not be hired. Notably, during her interview, Elauf did not reference the headscarf, indicate that she wore it for religious reasons, or state that she would need an accommodation from Abercrombie's "Look Policy." Additionally, no Abercrombie employee ever inquired of Elauf regarding the headscarf.

No Knowledge Requirement

In reversing the Tenth Circuit’s holding that an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant provides the employer with actual knowledge of his or he need for accommodation, the U.S. Supreme Court held that that Title VII does not impose a knowledge requirement. Specifically, the Court held that in order to prevail in a disperate-treatment claim, an applicant must only show that his or her need for an accommodation was a motivating factor in the employer's decision, not that the employer had actual knowledge of the need. In clarifying its ruling, the Court stated that “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions” and “an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

What Abercrombie Means to Employers

It is likely still a best practice for employers to avoid asking applicants about religion, or making assumptions based on stereotypes. However, in light of the Court's decision in Abercrombie, employers who have any reason to believe, or even suspect, that accommodation may be necessary will need to consider engaging in an interactive process with the applicant. Depending on the situation, that process may necessitate explaining the relevant work rule to the applicant, inquiring about whether the applicant would be able to comply with the rule or would need an accommodation, and analyzing whether any required accommodation is reasonable or would impose an undue hardship.

For more information on this article, please contact the author, Michael Link, at mlink@seatonlaw.com, 952-921-4604 or any attorney at Peters, Revnew, Kappenman & Anderson, P.A.

Department of Labor Poised to Release White Collar Exemption Proposal

By: Michael Link

The Fair Labor Standards Act (FLSA) contains what is commonly known as the white collar exemption. This exemption excludes from FLSA overtime and minimum wage requirements for employees that are employed in a bona fide executive, administrative, or professional capacity. The current white collar exemption regulations, which went into effect in 2004, provide an exemption for employees who receive at least $455 weekly salary ($23,660 annually) and whose primary duty satisfies one of several specified duties.

President Obama has recently directed the United States Department of Labor (DOL) to attempt to increase the number of individuals entitled to overtime under the FLSA. Though President Obama did not spell out exactly what revisions he wishes the DOL to make, it is widely anticipated that the following three items will be proposed: 1) An increase in the current $455 minimum weekly salary requirement, which will serve to dramatically reduce the number of employees who qualify for the white collar exemption; 2) A requirement that employee salaries be large enough to ensure that they provide at least a minimum wage for all hours worked; and 3) A bright-line test for the duties portion of the white collar exemption, which will likely require that an employee spend a specified percentage of their weekly work time engaged in certain exempt duties in order to qualify as exempt.

These expected changes may have significant impacts on employers, particularly those with many front-line and assistant mangers classified as exempt as well as employers that use the professional and administrative exemption for their entry level positions. Although no specifics have been provided yet, the expected changes may mean that employees making as much as $45,000 to $50,000 annually may fall below the new minimum salary requirement. The specific date for release of the proposed revisions is not known, but it is expected to occur in June 2015. A notice and comment period will follow publication. During that period, employers will be able to evaluate the proposed revisions and submit comments to the DOL for consideration.

For more information on this article, please contact the author, Michael Link, at mlink@seatonlaw.com, 952-921-4604 or any attorney at Peters, Revnew, Kappenman & Anderson, P.A.
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