OSHA Issues Guidance on Employer Response to Workplace Opioid Overdoes That is Consistent with Ohio Statute

 Last month, OSHA releases a two-page guidance about how employers can be prepared for opioid overdoses in the workforce.   Among other things, it suggested stocking  Opioid Overdose Reversal Medications (OORM), training employees to recognize an overdose and administering OORMs and then calling 911 because the drug’s affect is temporary and has no affect unless opioids are present in the subject’s system. “The two FDA-approved OORMs are naloxone and nalmefene, sold under several brand names.”  “Managers, supervisors, and employees should know what to do if someone experiences an overdose at work. Training and education can prepare workers and the community on how to prepare and respond to opioids in the workplace. Having opioid overdose reversal medications (OORMs) on hand can save lives.”  Ohio law provides immunity to administering OORMs if certain conditions are satisfied and 911 is summoned. 

OSHA summarized key training topics which employers should implement:

Key Training Topics for Employees

As more employers keep these medications on hand, it is important that everyone understands how OORMs work. Consider creating a voluntary training program that covers:

• The importance of calling 911 even if the person regains consciousness. Naloxone is not a replacement for emergency medical care.

• Recognizing the signs of an opioid overdose. These may include slow or stopped breathing, blue lips, unresponsiveness, and pinpoint pupils. A gurgling or snoring sound is a red flag that the individual is at risk, as is stupor, cold and clammy skin, coma, or respiratory failure.

• How OORMs work.

• Step-by-step instructions on how to use OORMs.

• The potential need for additional doses. More than one dose may be needed. Follow the dosage and administration instructions in the product labeling.

• Withdrawal symptoms. In people who are dependent on opioids, withdrawal symptoms, such as shaking, sweating, nausea, or feeling angry, may occur after OORM use. This is to be expected.

• The recovery position. How to position someone safely while waiting for emergency services to arrive.

• Good Samaritan laws. These are laws that protect people who help someone during an overdose. Employees should know what protections exist in their state.

Ohio has a number of statutes which govern emergency use of OORMs, including Ohio Revised Code §§ 3715.50  through 3715.505 and §2925.11.  Most applicable is §3715.504, which provides in relevant part:

(A) In the case of an individual who is not otherwise authorized under the Revised Code to administer drugs, the individual may administer an overdose reversal drug under this section. This authority may be exercised by any individual who is in a position to assist another individual who is apparently experiencing an opioid-related overdose.

(B) An individual who administers an overdose reversal drug under the authority conferred by division (A) of this section is not liable for damages in a civil action for injury, death, or loss to person or property for an act or omission that arises from administering the drug, and not subject to administrative action or criminal prosecution for an act or omission that arises from administering the drug, if the individual, acting in good faith, does all of the following:

(1) Obtains the overdose reversal drug under section 3715.50, 3715.501, 3715.502, or 3715.503 or the Revised Code;

(2) Administers the overdose reversal drug to an individual who is apparently experiencing an opioid-related overdose;

(3) Attempts to summon emergency services as soon as practicable either before or after administering the overdose reversal drug, except that making such an attempt is not required if the individual administering the drug knows that emergency services already have been summoned or are present.

The OORMs must be acquired and stored and subject to training in order to satisfy this statute.  Under §3715.50:

(B) Notwithstanding any conflicting provision of the Revised Code, any person or government entity may purchase, possess, distribute, dispense, personally furnish, sell, or otherwise obtain or provide an overdose reversal drug, which includes any instrument or device used to administer the drug, if all of the following conditions are met:

(1) The overdose reversal drug is in its original manufacturer’s packaging.

(2) The overdose reversal drug’s packaging contains the manufacturer’s instructions for use.

(3) The overdose reversal drug is stored in accordance with the manufacturer’s or distributor’s instructions.

(C) In addition to actions authorized by division (B) of this section, any person or government entity may obtain and maintain a supply of an overdose reversal drug for either or both of the following purposes: for use in an emergency situation and for distribution through an automated mechanism.

(1) In the case of a supply of an overdose reversal drug obtained and maintained for use in an emergency situation, a person or government entity shall do all of the following:

(a) Provide to any individual who accesses the supply instructions regarding emergency administration of the drug, including a specific instruction to summon emergency services as necessary;

(b) Establish a process for replacing within a reasonable time period any overdose reversal drug that has been accessed;

(c) Store the overdose reversal drug in accordance with the manufacturer’s or distributor’s instructions.

(2) In the case of a supply of an overdose reversal drug obtained and maintained for distribution through an automated mechanism, a person or government entity shall do all of the following:

(a) Ensure that the mechanism is securely fastened to a permanent structure or is of an appropriate size and weight to reasonably prevent it from being removed from its intended location;

(b) Provide to any individual who accesses the supply instructions regarding emergency administration of the drug, including a specific instruction to summon emergency services as necessary;

(c) Develop a process for monitoring and replenishing the supply maintained in the automated mechanism;

(d) Store the overdose reversal drug in accordance with the manufacturer’s or distributor’s instructions.

(D) If the authority granted by division (B) or (C) of this section is exercised in good faith, the following immunities apply:

(1) The person or government entity exercising the authority is not subject to administrative action or criminal prosecution and is not liable for damages in a civil action for injury, death, or loss to person or property for an act or omission that arises from exercising that authority.

(2) After an overdose reversal drug has been dispensed or personally furnished, the person or government entity is not liable for or subject to any of the following for any act or omission of the individual to whom the drug is dispensed or personally furnished: damages in any civil action, prosecution in any criminal proceeding, or professional disciplinary action.

(E)(1) This section does not affect any other authority to issue a prescription for, or personally furnish a supply of, an overdose reversal drug.

(2) This section does not eliminate, limit, or reduce any other immunity or defense that a person or government entity may be entitled to under section 9.86, Chapter 2744., section 4765.49, or any other provision of the Revised Code or the common law of this state.

For more information, you can consult: One Call Could Save A Life | Ohio Department of Health, Laws & Rules | Get Naloxone, and Drug Overdose and Ohio’s Good Samaritan Law |OhioSTART.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Court of Appeals Upholds Termination of Direct Care Employee on Same Day of Background Check Showing Legally Prohibitted Convictions and Rejects Hostile Work Environment Based on Two Incidents

Last week, the Franklin County Court of Appeals affirmed an employer’s summary judgment on a retaliation/hostile work environment claim because the plaintiff employee failed to prove sufficient facts that the alleged harassment was sufficiently pervasive and could not show his termination was pretext when Medicaid regulations prohibited his direct care employment when his background check reflected violent criminal convictions.  Garnett v. ViaQuest Residential Servs., L.L.C., 2026-Ohio-3742.   The Court found that the alleged two incidents were isolated in nature and had not been viewed by the plaintiff as sexual or harassment at the time, but merely disrespectful.  Further, “Ohio courts have repeatedly recognized that an employer’s enforcement of a legal disqualification is a legitimate, nondiscriminatory reason for termination.” 

According to the Court’s opinion, the plaintiff had been hired in early February 2023 and was fired a month later on the same day that his mandated background check revealed two convictions for felonious assault which Medicaid regulations prohibited when working in direct care positions with the elderly regardless of the date of the conviction.  ”Notwithstanding that appellant had two prior convictions for felonious assault, one in 2004 and one in 2006—which he does not dispute—he signed a verification form stating he did not have any disqualifying offenses, along with an authorization to conduct the background check.”    More than a year later, he filed suit alleging a hostile work environment and retaliatory discharge for complaining.   He alleged that a female supervisor had made inappropriate comments to him in her home on February 13 and had made unprofessional comments to him a few weeks later.   However, he not only failed to report the first incident to management, he had continued to exchange friendly text messages with that manager after the fact, including a Valentine’s Day message.  As for the second incident, while he reported that he felt disrespected by her comments, he never alleged prior to his termination that he believed he was being sexually harassed.

The Court of Appeals agreed that the alleged harassment was not sufficiently or objectively severe or pervasive so as to affect the terms and conditions of employment or his work performance.  

Here, viewing the evidence in a light most favorable to appellant—i.e., even assuming everything he has asserted regarding the February 13, 2023 incident is true— under the Harris factors set forth above, this isolated incident does not rise to the level of actionable harassment. The conduct was neither severe nor pervasive, was not physically threatening or humiliating, and did not interfere with appellant’s job performance. Indeed, appellant conceded at his deposition that he did not view the behavior of [his manager] at her home as harassment, but rather as her “trying to make a play. That’s what I call it . . . and I just chose not to.” . . .

Although appellant’s characterization of [his manager’s] behavior as “trying to make a play” potentially could be construed as being sexual in nature when read in isolation, other testimony of appellant makes clear that he did not view it as so. For example, appellant also testified that [she] had asked him to be her “special friend,” but he described such a relationship as being her sidekick or henchman, rather than some sort of sexual reference. Id. at 157-159. He further explained that [she] wanted him to take over as one of her “besties,” like Sam  . . . , because Sam was leaving for another position. Id. at 159. Finally, appellant testified that he walked away from the February 13, 2023 encounter thinking she is power-hungry and belittles and disrespects the people she manages, not thinking she wanted to engage in sexual conduct with him. Id. Accordingly, the February 13, 2023 incident cannot support a hostile work environment claim. {¶ 18}

As for the March 5, 2023 staff meeting incident, even assuming it is true that [his manager] snapped her fingers at appellant, patted her thigh and gestured to him to “come here,” this behavior cannot support a hostile work environment claim. As is the case with the February 13, 2023 incident, this is an isolated incident. Furthermore, while [her] behavior toward appellant may have been disrespectful, the behavior was not sexual in nature. Notably, appellant acknowledged this in his deposition: that he felt disrespected. (See Garnett Dep.) But being disrespected by your supervisor at work is not the same thing as harassment; it is instead ordinary workplace friction.

As for the retaliation claim, the Court agreed that the employer was legally required to terminate the plaintiff from his direct care position because Medicaid regulation prohibited individuals with his undisputed criminal convictions from providing direct care to elderly and/or developmentally disabled clients. 

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Affirms Employer's Summary Judgment When Plaintiff's Behavior Justified Request for Fitness for Duty Exam and Refusal Was Not Protected Conduct

Last week, the Sixth Circuit affirmed an employer’s summary judgment dismissing claims of retaliation and violations of the ADA when the hospital employer required a physician to submit to a forensic psychiatric exam and drug test as a condition of reinstatement from a suspension.   Robitaille v. Trinity Health Grand Rapids,  No. 25-2154 (6^th Cir. July 20, 2026).  The Court agreed that the numerous reports of the physician’s unprofessional, erratic and paranoid behavior and his safety-sensitive job duties justified the suspension and fitness-for-duty request and the subsequent refusal to renew his employment agreement when he refused to submit to the exam.  It also rejected his argument that his previously stated objections to the employer’s data safety protocols actually motivated the request and non-renewal of this agreement and that his refusal to submit was protected conduct.

According to the Court’s opinion, the plaintiff anesthesiologist was hired in 2022 on a three-year contract.  In December 2023, the computer system experienced an outage and he expressed concerns and agitation about the need for additional safety protocols.    Thus began repeated concerns being expressed to the chain of command about his unprofessional and erratic behavior.  The Practitioners Committee eventual sent him “letters requesting explanations for certain patient-care choices, including multiple instances in which he refused to provide care.”  He summarily referred to patient files after the first few inquiries, but then stopped responding.  “Based on this pattern of conduct, and after an unsuccessful meeting with [him], [the Department Chair] summarily suspended [his] clinical privileges in February 2024.”  The following month, the Executive Committee reviewed the suspension and the Chair’s report, “based on his “disruptive behavior adversely affecting the effective operation of the Hospital.”  . . .  The Executive Committee conditioned any reconsideration of the suspension on [the plaintiff] completing a fitness-for-duty examination that included both drug testing and a forensic psychiatric evaluation.”  The plaintiff submitted to and passed the drug test, but refused to submit to the psychiatric examination.   When his contract expired, the employer decided to not renew it.  Litigation ensued.

Under the ADA, a covered employer may not “require a medical examination” of an employee unless it is both “job-related and consistent with business necessity.” . . .

The statutory standard authorizing medical examinations can be met by performance- or safety-based issues. On the performance side, an examination is proper if an employer has “a reasonable basis” to believe that the employee is “unable to perform the essential functions of [his] job . . . . Thus, when an employee’s “aberrant behavior” affects his “job performance,” an employer may be justified in “ordering a mental examination.”  . . . . On the safety side, requests are proper if the employer has a “reasonable basis” to believe that the employee “pose[s] a direct threat to [his] own safety or the safety of others.”  . . . . Safety-based concerns carry particular weight in high-stress environments—like hospitals—where “employees are in positions where they can do tremendous harm if they act irrationally.”  . . .  In such settings, employers “may be justified in requesting a psychological exam on slighter evidence than in other types of workplaces.”

 . . .

The clinical shortcomings [the Department Chair] presented—[the plaintiff’s] hesitation to perform routine tasks, avoidance of higher-risk patients, and inability to handle the standard caseload—could all cause a reasonable person to question whether [he] was “still capable of performing his job.”  . . .  Likewise, [his] reported “aberrant behavior”—including paranoid ideation and excessive risk-aversion—noticeably impaired his job performance by causing inefficiencies and delays.  . . . . Because [he] practiced anesthesiology, these performance concerns were inextricably linked with patient safety. Administering life-threatening anesthetic agents is inherently high-stakes work where a single careless or “irrational[]” decision by [him] could “do tremendous harm” to patients in his care. . . .

The combination of documented performance shortfalls and behavioral red flags thus gave the Executive Committee reasonable grounds to question both whether [the plaintiff] was “still capable of performing his job,”  . . . , and whether he “posed a direct threat” to patient safety,  . . . . Given the nature of these concerns, the Executive Committee reasonably sought to rule out underlying impairments related to substance abuse or mental health that could be hindering [his] fitness to practice. The decision to require the medical examination was therefore both “job-related and consistent with business necessity.” . . .

The Court rejected the plaintiff’s argument that the district court had inappropriately believed the truth of the allegations against him.” Rather, it correctly identified that “the relevant question is whether the [Executive Committee] had a ‘reasonable belief’ that a medical exam was warranted.”  . . .  And it explained that “the underlying truth of [the Chair’s] claim does not impact whether the [Executive Committee] was reasonable in relying on it.””

The Court also rejected the plaintiff’s argument that the report and examination request was pretext for discrimination or retaliation.  “For starters, our decision in Sullivan adopted the objective-evidence standard for ADA medical-examination claims and held that “there is no need to assess an employer’s intent in ordering a fitness-for-duty examination.””

The Court also rejected the plaintiff’s argument that all of this was pretext as retaliation for his concerns with the computer safety protocols because he failed to address the subsequent months of multiple reports about his behavior and performance issues and his refusal to respond to them or to cooperate with the investigation by the Practitioners Committee. “Those issues, as mentioned, provided an intervening, non-retaliatory basis for the Executive Committee to order the medical examination.”

The plaintiff also argued that his refusal to submit to the fitness-for-duty examination was protected conduct under the ADA.  The Court rejected that argument as well.  The employer’s “request did not violate the ADA, and [he] offers no other arguments that his opposition was reasonable and grounded in good faith.  . . .  [His] argument that he engaged in protected activity therefore fails.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

DOL Addresses Compensable Travel/Commuting Time and Continuous Workday Doctrine in Two Opinion Letters

Last week, the federal Department of Labor Wage and Hour Administrator issued two opinion letters concerning the compensability of time spent travelling from home to work or one’s first client assignment.  Ohio law generally follows the FLSA and employers can rely on opinion letters for a good faith defense, although these letters are not binding on courts.   The DOL explains that time spent commuting from home to work generally benefits the employee more than the employer (because the employee chose where to live) and is generally not compensable because, unless the employee is performing work during the commute, the time is spent mostly for the benefit of the employee (like lunch breaks).  “[A]s a general matter, an “ordinary” or “normal” commute represents a third category of time, in addition to off-duty time and bona fide meal breaks, that is not worktime even if it occurs during the continuous workday.”   Thus, employers who permit employees to work remotely from home need not compensate employees who (i) only work, or start working, from home in the morning before then commuting to the office or (ii) perform some work from home after travelling home in the evening as a convenience.  However,  in the next letter, the DOL found that an employee who did not have a regular work office and always commuted to directly to his first client assignment and was required to spend almost an hour before leaving each day scheduling client appointments (sometimes while driving), then the drive time and scheduling time was compensable, but not the time spent receiving pages with such assignments. 

In the first letter, FLSA2026-9,  the Administrator addressed an employer which generally required employees to spend the entire day working from home or working in the office to avoid having to pay for mid-day commuting time even though (i) some employees preferred to work from home during rush hour in order to reduce their commuting time, (ii) some employees needed to leave early because of bus schedules, but were otherwise willing to work more hours and overtime and (iii) some employees wanted to work half days from home and half days in the office.   In none of these scenarios were the employees performing any work during their travel to or from the office (which would, of course, be compensable).  Because scheduling the commute was for the convenience of the employee and benefitted the employee (who chose where to live) more than the employer, the DOL explained that the time was no more compensable than a lunch or other rest break. 

Under the Portal Act, “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which [an] employee is employed to perform” are not compensable activities. 29 U.S.C. § 254(a)(1). However, both before and after the Portal Act, WHD and courts have long confirmed that “[n]ormal travel from home to work is not worktime.” 29 C.F.R. § 785.35;  . . .  even in its pre-Portal Act decisions, the Court never held that time an employee spent traveling from his or her home to an employer’s worksite was generally compensable. This is because normal commuting travel between home and work is a “normal incident of employment” that may take more or less time depending on where an employee lives—i.e., it predominantly benefits employees by allowing them to live where they choose.  . . . Ordinary commuter travel is excludable whether an employee “works at a fixed location or at different job sites.” 29 C.F.R. § 785.35.

 . . .

 . . . though ordinary commuting is not compensable work—as explained above— travel from home to work can constitute work in some instances, such as “if an employee who has gone home after completing his day’s work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his employer’s customers.” 29 C.F.R. § 785.36; see also id. § 790.7(c). Similarly, “home to work [travel] on [a] special one-day assignment in another city” is compensable worktime, though an employer may deduct the time that an employee would have otherwise spent commuting to his or her “regular work site.” Id. § 785.37;  . . .  Finally, if an employee performs any work during home-to-work travel, it would “of course be counted as hours worked.” 29 C.F.R. § 785.41; see also id. § 790.7(d). These types of travel are not considered “ordinary” commuting because they are not normal incidents of employment and primarily benefit the employer as opposed to the employee.

The Continuous Workday Doctrine.  The “continuous workday” doctrine or rule establishes that “once the workday starts, all activity is ordinarily compensable until the workday ends,” . . . For example, “a messenger who works a crossword puzzle while awaiting assignments” or “a factory worker who talks to his fellow employees while waiting for machinery to be repaired” is considered to be working, even if the employee is “allowed to leave the premises or the job site during such periods of inactivity.” 29 C.F.R. § 785.15. Similarly, a waiter who must wait during his shift for customers to come in is working. . . .

The continuous workday doctrine reflects a general presumption that an employee’s time within the workday predominantly benefits the employer—and that time outside the workday mainly benefits the employee. It thus historically benefits both employers and employees. Generally, an employee’s time during the workday is compensable, even though it may provide employees with some benefits, whereas outside the continuous workday time is generally not compensable even though it may provide employers with some benefits. . . .

Like many general principles, there are recognized exceptions to the continuous workday doctrine—both for time spent at an employer’s worksite that clearly benefits the employee more than the employer and, concomitantly, time spent away from an employer’s worksite (e.g., at a worker’s home) that benefits the employer more than the employee. The former is, therefore, excludable from compensable worktime and the latter properly counted as hours worked. Specifically, the Department has recognized off-duty time, defined as “periods during which an employee is completely relieved from duty and which are long enough to enable [an employee] to use the time effectively for his own purposes,” and bona fide meal periods as time during the workday that is nonetheless not worktime and thus need not be compensated. 29 C.F.R. §§ 785.16, 785.19. And, of course, any hours worked before or after an employee’s regular working hours constitute worktime, even if the work is performed away from the worksite, including at home. 29 C.F.R. § 785.12.

 . . . , as a general matter, an “ordinary” or “normal” commute represents a third category of time, in addition to off-duty time and bona fide meal breaks, that is not worktime even if it occurs during the continuous workday. . . .

 .. .

 . . . ,” otherwise-ordinary travel between home and work does not become worktime simply because it occurs during the workday—that is, at some point in between an employee’s first and last “principal activities.”  . . .

Rather, when an employee engages in an “ordinary” commute, the commute is simply a “normal incident of employment,” and thus is not “work.” 29 C.F.R. § 785.35.22.   We therefore confirm here that if home-to-work travel is “ordinary,” it need not be paid or recorded as worktime, and we clarify that ordinary home-to-work travel that occurs during the workday constitutes a third category of time during the workday, in addition to bona fide meal breaks and off-duty time, that is not considered “hours worked” under the FLSA.

 . . . .

 . . .  the timing of such commuter travel is genuinely voluntary, as employees might have any number of reasons to adjust the timing of their daily commutes. For example, an employee might need to remain at home for part of his or her workday due to a sick child or a visit from a maintenance worker during a scheduled appointment window. Because optional mid-day commuter travel allows employees to accommodate such personal needs, it can benefit employees as much or more than commuter travel which occurs at the beginning or end of the workday. Accordingly, voluntary commuter travel which occurs in the middle of the workday remains an ordinary commute and does not qualify as work.

In the second letter, FLSA2026-10, the employee did not have a regular office, but rather, performed maintenance and repair work on hospital MRI machines throughout the region where he lived.  He would receive pages each morning with an assignment and then would spend roughly 45 minutes before his paid shift began at 8 am calling those hospitals and scheduling appointments.  Sometimes, he would have to leave well before his 8 a.m. shift and schedule appointments on the way.  Thus, he had no “normal” commute because each day he was sent to a different location. 

The DOL found that the pages (which took approximately 15 seconds each to receive) did not constitute work time.  It also did not matter that his employer provided him with a vehicle in which to travel.   However, the time he spent scheduling appointments, consulting with engineers, and driving to appointments did constitute compensable work time.  “The “continuous workday” doctrine establishes that “once the workday starts, all activity is ordinarily compensable until the workday ends,” . . .

Compensable Travel Time. Unlike ordinary commuting time or travel time excepted by the Portal Act or ECFA, any travel that is part of an employee’s principal activity, such as travel between different worksites during the workday, is considered part of the day’s work and therefore compensable hours worked.  . . .  Additionally, because an employee must be paid for all hours worked, courts and the Division have long recognized that time spent during an otherwise non-compensable ordinary home-to-work or work-to-home commute becomes compensable hours worked when the employee is working during the commute time.  . . .  Thus, if, during a commute, an employee performs activities that are integral and indispensable to the principal activities he or she is employed to perform, or said principal activities themselves, and not incidental to the use of an employer-provided vehicle for commuting, then the time spent on those activities constitutes compensable hours worked even though the activities occur during an otherwise non-compensable commute.

 . . . .

Receiving assignments remotely is a minor consequence of driving an employer-provided vehicle to and from home. Otherwise, an employee would have to report to a central work location to receive assignments, which would frustrate the convenience of a program allowing employees who work at multiple job sites per day to drive an employer-provided vehicle directly to and from home. . . . .

On the other hand, time spent calling clients to schedule and arrange the details of appointments, including scheduling other field service engineers, constitutes compensable hours worked. These activities are required by, and primarily benefit, your employer; therefore, they constitute work. Furthermore, they are a critical element of your primary responsibilities, and consequently are not incidental to your commute or otherwise preliminary but rather integral and indispensable to your principal activity of installing and servicing medical equipment at your employer’s clients’ locations. Unlike simply receiving pages, communicating with clients to schedule appointments is a necessary step to performing the services requested by them.  . . .  The same is true of calling other field service engineers to ensure that clients’ service requests are fulfilled. Similarly, unlike receiving pages, which is specifically necessary for you to receive assignments from home, one must call clients to schedule appointments in any event if clients’ requests are to be fulfilled. This activity is thus intrinsic to the services you perform for clients, and you cannot dispense with such work.  . . . .

 . . . .

Under the facts described above, we conclude that this travel is not an ordinary commute, but rather compensable travel. We reach this conclusion based on the application of longstanding FLSA principles to the totality of the circumstances. Here, not only are both the time and manner of the travel based primarily on the employer’s needs rather than the employee’s choice, but your employer is also requiring you to engage in substantial work both immediately before the travel, when you spend most of an hour engaged in phone calls, and immediately after your travel, when you work at your first worksite of the day. This bears few, if any, of the hallmarks of an ordinary commute between an employee’s home and worksite. Indeed, under the circumstances described, you lack virtually any of the types of freedom and flexibility that typically accompany an ordinary home-to-work commute time, such as the choice of the mode of transportation, the choice of departure time, and the ability to spend time on personal tasks before or during breaks in the travel. For these reasons, we conclude that your travel is not, in fact, an “ordinary” commute that is non compensable regardless of when it occurs. To be clear, the Division would consider this sort of travel to work to be explicitly excluded from compensability under the Portal Act if it were to occur before or after the workday. . . .

 . . .

 . . . . you are sometimes required (and accordingly must regularly plan) to spend the substantial majority of the hour before your travel making calls to clients, and to other engineers as necessary, to fulfill clients’ service requests, with any personal activities you undertake limited to those you can perform simultaneously with (or in very short breaks between) your work duties, before you immediately travel to your first worksite at the time and in the manner directed by your employer. . . .

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Proposes Regulation to Rescind Employer Demographic Recordkeeping Requirements for EEO-1

 Yesterday, the EEOC announced that it was proposing to rescind the regulations which require many employers (with over 100 employees or with a certain federal contract, etc. ) to maintain and file demographic information on an annual basis.  In short, the EEOC proposes to abolish the EEO-1 and EEO-2, etc. requirements because they are burdensome to employers and the government and are contrary to goal of a color-blind society when most employers are not accused of unlawful discrimination.   It also contended that it encouraged stereotyping and impermissible preferences.   This action would remove the requirement to request such information from newly hired employees, etc. "Because the Commission is proposing to rescind the EEO reporting requirements, it is also proposing to rescind the recordkeeping and record preservation requirements associated with the EEO Reports." The proposal has not yet been published in the Federal Register, but once it is, the EEOC will accept comments on its proposal for 30 days under the Administrative Procedures Act. 

As stated in the proposed Notice:

    Removal of EEO-1 Reporting Requirements and Conforming Amendments.   The proposed rule would remove current § 1602.7, which contains the EEO-1 reporting requirement. The proposed rule also removes § 1602.8, which contains a penalty for making false statements on the EEO-1 report; § 1602.9, which contains the Commission’s remedy for a regulated entity’s failure to file an EEO-1 report; and § 1602.10, which is currently reserved and therefore unnecessary. It also removes §§ 1602.11 and 1602.12, which reserve to the Commission the right to impose additional reporting or recordkeeping requirements; these sections are unnecessary to retain because section 709(c) of Title VII authorizes the Commission to establish such requirements in the future. The proposed rule removes § 1602.13 because it contains requirements related to the EEO-1 report that are not necessary in the absence of the reporting requirement. The Commission restates its proposal to amend § 1602.14 to add a reference to the PWFA, as first proposed in the Commission’s November 21, 2024 NPRM.

 . . . . 

Amendment and Removal of Sections Pertaining to Investigations The Commission proposes to amend § 1602.56 to remove a reference to the EEO reporting requirements and to clarify that the section applies to record preservation in addition to recordkeeping. The Commission further proposes to remove §§ 1602.57 and 1602.58 because they concern requests for exemption from reporting and would be unnecessary in the absence of the reporting requirements.  

 . . . . 

    EEO-1 annual reporting requirements apply to private employers with 100 or more employees and to federal contractors that have 50 or more employees and meet certain criteria. 

 . . . 

§ 1602.14 Preservation of records made or kept. Any personnel or employment record made or kept by an employer (including but not necessarily limited to requests for reasonable accommodation, application forms submitted by applicants and other records having to do with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship) shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later. In the case of involuntary termination of an employee, the personnel records 54 of the individual terminated shall be kept for a period of one year from the date of termination. Where a charge of discrimination has been filed, or an action brought by the Commission or the Attorney General, against an employer under title VII, the ADA, GINA, or the PWFA, the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action. The term “personnel records relevant to the charge,” for example, would include personnel or employment records relating to the aggrieved person and to all other employees holding positions similar to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied and was rejected. The date of “final disposition of the charge or the action” means the date of expiration of the statutory period within which the aggrieved person may bring an action in a U.S. District Court or, where an action is brought against an employer either by the aggrieved person, the Commission, or by the Attorney General, the date on which such litigation is terminated. (Approved by the Office of Management and Budget under control number 3046-0040)  

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.