September 16, 2025 • 52 mins
The employment law landscape is evolving rapidly, especially for health care employers. Timothy A. Hilton, Partner, Husch Blackwell LLP, and Gary McLaughlin, Partner, Mitchell Silberberg & Knupp LLP, discuss the areas of greatest concern for health care employers. They cover wage and hour issues, considerations related to remote work, and religious and ADA accommodation issues. Timothy and Gary spoke about this topic at AHLA’s 2025 Annual Meeting in San Diego, CA.
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Episode Transcript
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SPEAKER_00 (00:00):
This episode of AHLA Speaking of Health Law is
brought to you by AHLA membersand donors like you.
For more information, visitAmericanHealthLaw.org.
SPEAKER_01 (00:17):
Hello, everybody.
Good afternoon or good morning,depending on when and where
you're watching this.
My name is Tim Hilton.
I'm a partner practicing in thehealthcare space of labor and
employment law at Hush BlackwellLLP in Kansas City.
We're a full-service nationalfirm, and I practice, as I said,
in our labor and employmentgroup.
(00:38):
And I'm here with GaryMcLaughlin.
We're doing a podcast todayfollowing up on a talk that we
gave at the AHLA a 2025 annualmeeting in San Diego.
And we're going to cover a fewof the topics that we spoke
about last month.
Specifically, we're going totalk about some wage and hour
issues, some issues associatedwith remote work, and then also
(01:03):
some thorny religious and ADAaccommodation issues.
And Gary's going to start itoff, but Gary, why don't you
introduce yourself?
SPEAKER_02 (01:13):
Thanks, Tim.
I'm Gary McLaughlin.
I'm a partner at Mitchell'sSilberberg and Nupp in Los
Angeles, California.
And I practice employment law.
My practice includes a widerange of employment litigation
matters.
And I especially do a lot ofwage and hour class and
representative work.
And I'm going to start it offtalking about some key kind of
(01:37):
wage and hour issues.
First, we're going to talk aboutsome regular rate issues, which
can be tricky for lots ofemployers but especially
healthcare employers.
So I know employers across thehealthcare industry have been
facing a lot of staffingshortages and recruitment and
hiring and retention challengesover the last number of years.
(02:01):
And That's often led employersto kind of seek new and
innovative ways to recruit andretain employees through various
types of incentive compensation,benefit programs and whatnot.
And those can be great forretention and recruitment, but
they can also sometimes createsome perhaps unanticipated wage
(02:25):
and hour and particularlyovertime consequences, because
in many instances, those typesof benefits and incentive
compensation programs need to befactored into the regular rate
for purposes of calculating overtime.
And that's something that cansometimes be overlooked when
employers are rolling out a newcompensation or benefits or
(02:49):
incentive program.
So I'm gonna start just kind ofwith a basic overview of what
the regular rate is.
So as many of you probably know,who follow any employment, law
matters, the regular rate isn'tnecessarily just the base hourly
rate that an employee earns.
(03:09):
Other types of compensation mayneed to be included in that.
So the basic formula under theFLSA, the federal law, is that
the regular rate equals totalcompensation for the work week
divided by total hours workedfor the work week, subject to
certain statutory exclusions.
And that formula is simpleenough.
(03:31):
It seems very straightforwarduntil you really start getting
into the details and then it canbecome very complicated.
And there's a great deal of grayarea that exists in terms of
what needs to be included in theregular rate, how to include it
in the regular rate and whatnot.
(03:52):
So again, it can quickly becomecomplicated.
So kind of building on thatbasic, simple formula, some of
the general principles regardingthe regular rate.
So all compensate, generallyspeaking, all compensation for
hours worked or servicesrendered or performance needs to
(04:13):
be included in the regular rate.
So Again, that maybe soundssimple enough as well, but it
starts to get a little morecomplicated in determining,
well, is something actuallycompensation for hours worked or
not, or for services orperformance?
And that's where it can...
(04:34):
often get a little bit tricky.
So for example, some things thatsort of obviously need to be
included in the regular rate arethings like non-discretionary
bonuses.
If it's a bonus that's dictatedby a formula, you hit a certain
production target or whatever itmay be that's defined by
(04:55):
formula, it's non-discretionary.
If you hit those numbers, youget a bonus pursuant to a
particular formula or something.
That's pretty straightforward,pretty clear that that needs to
be included in the regular rate.
So that type of compensation isgoing to increase the regular
rate.
It's going to increase,therefore, the amount of
overtime compensation that isowed, how much overtime premium
(05:17):
is owed, if the employee worksovertime during that same
period.
But some other things that maybeare less obvious.
So per diems and stipends, thosemay need to be included in the
regular rate as well.
And I say may because it's notalways clear-cut.
It often depends on how theprogram actually works.
(05:37):
There may be per diems that donot need to be included in the
regular rate.
There may be some that do needto be included in the regular
rate, depending on how theyoperate and how they function
and how the program is set up.
Shift differentials is anotherthing that likely needs to be
included in the regular rate.
If an employee is getting paidextra to work certain shifts,
(05:57):
say an overnight shift, thingslike that, weekend shifts, and
there can be much more.
I'm going to talk about a fewkind of maybe somewhat common
kind of bonuses that come upwhen we're speaking, when we're
talking about employeerecruitment and retention.
So referral bonuses.
SPEAKER_01 (06:17):
Yeah, Gary, can I ask a question about this?
And maybe you're going to coverit, but how does it work when a
bonus might be earned over aperiod of time, but it's paid in
a given time?
Does that impact the regularrate for when it's paid or for
the entire time when the bonuswas being earned.
SPEAKER_02 (06:36):
Right.
So generally speaking, theregular rate is going to be
calculated and that incentivecompensation bonus or whatever
it is, is going to be factoredin over the period of time for
which it's earned, which may notnecessarily be when it's
actually paid.
It might be paid sometime afterthe end of a period, such as a
monthly bonus that's paid thefollowing pay period after the
(06:59):
close of the month or quarterlybonus that's paid sometime in
the following quarter.
But generally, you're going tolook at the time period for
which the compensation wasearned.
So if it's a monthly bonus,that's probably going to be the
month to which it applies.
If it's a quarterly bonus, it'sgoing to be likely the quarter,
the three-month period overwhich you actually earned that
(07:22):
bonus.
And that's where with some ofthese types of bonus programs
I'm going to talk about, it canbe a little unclear about what
that period is.
So a referral bonus, a bonuswhere an employee gets some sort
of bonus when they refer asuccessful candidate for hire.
Generally, that does not need tobe included in the regular rate,
although there are some caveats.
(07:43):
And I should say sort of at thebeginning that Generally, I'm
going to be kind of speaking interms of federal law, FLSA.
Many times state law tracks whatthe FLSA would require, but
there can be some deviations.
And so certain state law may bemore protective of employees.
(08:04):
For example, I practice inCalifornia and it's sort of
notoriously more protective ofemployees in many instances
compared to the FLSA.
So I'm going to be talking sortof usually in general terms
under the FLSA, but always bemindful of what state you're
operating in and whether therecould be differences under state
(08:25):
law in terms of what needs to beincluded in the regular rate or
how it needs to be calculated.
So a referral bonus...
Like I said, generally notincluded in the regular rate,
assuming that it's a voluntaryprogram.
These efforts don't involvesignificant amounts of time.
And it's really done after hoursamongst friends and colleagues
(08:49):
and neighbors and acquaintances.
It's kind of in a socialsetting.
It's not really supposed to looklike work.
A retention bonus.
So a bonus that's, say, you earnbecause you get hired and remain
employed for a certain period oftime.
Those generally do need to beincluded in the regular rate.
(09:11):
And I'm going to talk in amoment, Tim, about sort of
related to your question, whichis, well, how do you figure out
what period of time that appliesto?
A sign-on bonus.
So a bonus that's a flat amountthat's paid to someone when they
sign on to take the job.
That's sort of a maybe.
It kind of depends.
(09:32):
And one of the key factors iswhether that sign-on bonus needs
to be paid back if you don'tremain employed for a certain
period of time.
And if you do have to pay itback, if your employment ends,
let's say within a year orwhatever the time period is,
then it may need to be includedin the regular rate because then
it really, even though it mightbe called a sign-on bonus or a
(09:54):
signing bonus, it reallyfunctions as a form of retention
bonus in many ways.
So I mentioned retention bonusescan get complicated.
So let me just kind of give anexample to illustrate that.
Let's say, an employee has anoffer letter that says that they
get a retention bonus that'ssort of in several tiers.
(10:17):
It's$500 upon completing thefirst 90 days,$1,000 upon
completing the first year ofemployment, and then$5,000 upon
completing the second year ofemployment.
So we kind of have threedifferent payments that arguably
cover different periods of time.
It's probably pretty clear thatthe first$500 for the first to
(10:39):
complete the first 90 days, thatwas earned over the first 90
days of employment.
But what about these nextpayments, the subsequent
payments, that$1,000 that wasearned when you hit your
one-year anniversary?
Was that just earned for days 91through 365?
Or was it earned over that wholeyear because you had to be
(11:02):
employed over the entire year?
Same with that...
second anniversary bonus of$5,000.
Is that just for the second yearof employment or was it earned
over the first entire two yearsof employment?
And this may depend on how it'sdescribed in the offer letter
and how it actually, what thedescription is and what the plan
(11:25):
documents say.
So again, definitely a grayarea, but pay attention to the
details because it could dependon how it's worded, how it's
communicated to the employee.
Per diems is something else thatcan get tricky.
I think ostensibly per diems areusually kind of considered some
(11:46):
sort of payment for expensesthat an employee might incur
when they're traveling away fromthe regular workplace.
So for example, travel nursesand the like.
However, sometimes they canfunction more as a payment for
services rendered rather thanreimbursement for expenses.
So for example, let's say youget a flat amount per week Um...
(12:12):
If it doesn't vary based on howmany hours you worked and the
services performed, then thatmay be properly treated as
reimbursement for expenses, notwages for services rendered.
But sometimes it can fluctuate.
So for example, if there's aconnection, courts will look at
(12:34):
the connection between thepayment and hours worked.
Does the per diem go up if yourhours worked increase?
Or does it go down if you workfewer hours?
It may depend on whether the perdiem is paid regardless of
whether costs are actuallyincurred.
And it could also depend onwhether the employee is required
(12:56):
to provide any sort ofattestation regarding costs that
were incurred.
And if it fluctuates based onhours worked, if you're getting
it regardless of whether youactually incur costs, and if you
don't have to actuallydemonstrate that you incurred
any costs Then a court may lookat that and say, that really is
compensation for hours worked.
(13:19):
And that would be basicallytreated almost like just an
additional wage that you'reearning.
And that may need to be includedin the regular rate.
So be very careful when you'redealing with per diems, how
exactly that program works, howit's structured and how it's
paid.
A
SPEAKER_01 (13:39):
lot of- If you're at a stopping point, I just had a
thought and I wanted to just getyour thoughts on it.
I mean, all of this stuff, whenyou start talking about
calculating differently from 91to 365 and one to 90 and per
diems and all this stuff, Imean, it strikes me that that
counsels employers to simplifythings and pay a higher rate up
(14:01):
front, but it strikes me thatthe talent pool has an
expectation of bonuses and othertypes of compensation that are
separate from your base pay oryour base salary.
I don't know if you want toreact to this, but I just think
it's an interestingself-fulfilling prophecy that
employers have started doingstuff like this and then your
(14:23):
competitors have to do it aswell because it's what the
talent pool is expecting.
SPEAKER_02 (14:27):
I think that's a good point.
I often deal with feel questionsfrom employers where they're
sort of paying a certain way.
It's like, well, why are youdoing it this way?
This seems perhaps morecomplicated than it needs to be.
Sometimes the answer is, well,that's what people expect.
They don't see a per diem.
For example, they're not goingto be happy.
You know, they're going to feellike somehow it's lesser, even
(14:48):
if maybe they're getting ahigher hourly rate.
SPEAKER_01 (14:51):
Yeah.
And then, of course, the counterbeing if you're going to gross
it up on the front end and endup paying people a significantly
higher hourly rate, there'sgoing to be a ton of people who
don't work out.
And so you've sort of anchoredyourself at that point of, hey,
this is what we pay.
And I could see that being a,creating a separate business
(15:12):
problem.
So, but it is interesting thatthese stuff gets so complicated
and it is sort of what peopleexpect to see in their offer
letters.
SPEAKER_02 (15:20):
Yeah.
And if we're talking about perdeems and specifically, it can
also be tax consequences andthat can be a motivation.
If it's done properly and it'streated as reimbursement, the
employee may not owe taxes onthat.
If it's If you eliminate the perdiem and just increase their
hourly rate, then that's alltaxable.
So that can make a difference toemployees as well.
(15:40):
And I suppose employers need abalance like...
the benefits that come throughsimplicity versus the risks that
come from maybe a morecomplicated program, one that
may be viewed as morecompetitive or desirable for
(16:02):
employees.
So I think it's smart foremployers to always kind of go
through that analysis and notjust sort of jump on a bandwagon
without thinking about whythey're doing it, what those
legal consequences are.
SPEAKER_01 (16:15):
It's kind of the converse of what I see in the
exempt versus non-exempt space.
And when we went back and forthwith various changes to the
exemptions and changes to thesalary basis test, I had
conversations with people aboutlike, well, just make that
person hourly if it's going tobe complicated.
(16:38):
And it's sort of the same thingbecause there is a stigma is not
the right word for it.
But, you know, people have anexpectation of being salaried,
even though from an economicperspective, they might be
better off to be to benon-exempt.
So it's kind of one of thosethings, how the culture
developed around FLSA.
And we have to we as lawyers andcounselors have to, you know,
(17:00):
work that into our analysis.
SPEAKER_02 (17:02):
Right.
And when you talk aboutclassification issues, then, you
know, normally you might think,well, these employees are
classified as exempt.
We don't have to really, we canpay sort of whatever we want.
We don't have to worry aboutovertime and regular rate.
And that's generally true ifthey're properly classified.
But if that classification getschallenged, then all of these
(17:23):
other incentive compensationbonuses, et cetera, that you're
paying on top of salary suddenlymight need to get retroactively
included in the regular rate fordamages and suddenly, you know,
you might have, you know, inhindsight, you say, well, I
never would have paid them thisway if I had realized that.
(17:43):
So that's something.
SPEAKER_01 (17:44):
Yeah, it all sounds great until you find out that
they're not actually exempt.
Right.
And you might not find that outuntil you're well down the road
in litigation.
SPEAKER_02 (17:53):
Right.
And in California, where Ipractice, generally, when there
is a misclassification case,whatever compensation you pay
them, salary, bonuses, etcetera, that's considered
compensation only fornon-overtime hours.
And there may be an opportunityto calculate it differently
under the FLSA, but that can bevery punitive for employers in
(18:13):
California where, say, you'rescheduled to work 50 hours a
week and you get a healthysalary for that.
Well, if you're deemed to bemisclassified, the law in
California is going to say thatsalary, no matter how high it
was, was only for 40 hours perweek.
And now you have automaticovertime.
And what's more, that overtimepremium under California is
(18:33):
going to be for all those hoursabove 40 or above eight in a day
it's going to be time and a halfso you're gonna you get really
hit um hard so we're not reallydelving into classification
issues today but it's always inthe background when you are
classifying people as um exemptthere's that risk that if you
don't get it right or if it'schallenged then all these other
(18:55):
things we're talking about comecome into play and can be um you
know expensive to say theEmployers often with staffing
shortages and recruitmentchallenges and retention
challenges often are looking fornew and innovative ways to
attract and retain employees.
(19:16):
They're coming up with new bonusplans, new incentive
compensation plans that don'tnecessarily fit the traditional
molds of a regular bonus or aretention bonus or whatever.
There, I think you have to beespecially careful and really
understand how that compensationbenefit program works.
(19:36):
And here's just an example.
And this is one that I mentionedduring our, when we spoke at the
annual meeting earlier thissummer.
And this comes from just anexample from a publication that
I saw where a company had a starsystem for home caregivers.
It was a home care company.
And there was this like starsystem that you earn different
(19:57):
ways in terms of performance andhours and whatnot.
And then you earn these pointsessentially, and those all got
kind of wrapped up into thispoint system where then you
could choose certain benefits.
You earned a certain number ofpoints and then a certain number
of points might allow you toselect a certain benefit and
(20:20):
more points may allow you toselect a different benefit.
And so then the question theremay be like, well, okay, how
does that work?
If you earn more stars byworking more hours or doing a
better job and your performanceor the services you're
providing, then those are thingsthat may need to be included in
(20:43):
the regular rate.
I don't know, Tim, if you'veseen other examples in your
practice of sort of kind ofcreative bonuses that employers
are doing that might, you know,kind of perhaps raise flags
about whether there could beregular rate implications.
SPEAKER_01 (20:57):
Yeah, I mean, anytime I don't do a ton of wage
and hour litigation orcounseling, but, you know,
whenever I see, especially inthe healthcare space, because we
know there's shift differentialand all sorts of things that are
at play here.
And, you know, I mean, I dodamages calculations all the
time and leading up tomediation, okay, well, what's
(21:17):
this person's, you know, whatare their lost wages to date or
what do we think their lostwages through trial are going to
be?
And it gets, yeah, reallycomplicated when you're looking
at, okay, well, they were 40 inthis pay period and they were 35
at a shift differential and thenthey had this bonus and that
bonus.
And, you know, it gets reallycomplicated.
So absolutely.
(21:38):
And when you are, you know, inreal time trying to, you know,
calculate it, because, ofcourse, that's the other thing
that's interesting here is thatno one, of course, in 2025 is
sitting there doing the maththemselves here.
And I know that there areemployers that are, you know,
oh, gosh, the payroll systemmade a mistake.
(21:58):
Well, guess what?
You know, the court doesn'tnecessarily care about that, at
least depending on thejurisdiction that you're in.
Because if the data got put inincorrectly and somebody got
shorted what they were owed,we're responsible for how we
calculate it, even when it'sbeing done by a third-party
payroll processor.
I
SPEAKER_02 (22:17):
even sometimes hear from employers that, well, our
payroll system won't allow us todo that, to calculate this or do
a certain calculation, and thatcan be problematic.
The last thing I want to talkabout in terms of wage and hour
issues is what I call boot upclaims, which is kind of what it
(22:40):
sounds like.
An employee, generally allemployees nowadays need to get
onto a computer system to work.
And computers take time to bootup.
On, it needs to boot up.
You may need to get into certaininternal programs or platforms
to do your job, whether it'stimekeeping platforms or other
types of platforms.
(23:01):
And all of those programs taketime to open, booting up,
turning the computer on, thenlogging into a certain program,
etc.
And we're seeing more and moreclaims and lawsuits over this
issue.
And sometimes it may be what youmight think is very small
amounts of time, a few minuteshere and there, but those can
(23:23):
arise, those can give rise toclaims and can add up.
And courts will look at, underfederal law at least, you know,
whether the time is de minimisis still an issue that under the
FLSA they'll look at, butthey'll also look at whether
that time is integral orindispensable to their principal
(23:44):
activity.
So if you need to use a certainprogram to do your job and you
need to log on and boot up andget into that program before you
can really start your work, thenthere may be a good argument
that that is compensable time,at least if it's not de minimis.
But I know, I don't When I getin in the morning and I turn on
(24:05):
my computer, it takes severalminutes before I can really do
anything on the computer.
SPEAKER_01 (24:10):
It's funny you say that because one of my first
jobs before law school wasworking in a call center.
And I'm just now remembering asyou say it that, I mean, I never
went and did the math on this,but they always said that, oh,
well, you start getting paid assoon as your first call is
placed.
And there's all this logging inand dialing up in the old days
(24:30):
of how it works.
And I'm sure that would not fly,at least in 2025, from a boot-up
perspective, and probably didn'tfly back then either, but nobody
knew.
SPEAKER_02 (24:41):
And call centers is where a lot of these cases have
arisen, and that's where we seethese claims a lot.
But you can also see it withother types of remote employees.
So a lot of employees areworking, maybe doing, say,
something, operating as a callcenter, right?
But they're not going into anoffice necessarily.
They're working from home, orthey're doing maybe some sort of
telehealth function or whateverit is.
(25:03):
an administrative function andthey're doing it from home.
And when they get their coffeeand go into their second bedroom
or whatever and home office andturn on their computer, that
might take a few minutes.
And you might think, well,they're just at home.
They're not really working, butthat could arguably be
compensable.
(25:23):
So with remote employers, it'ssomething to think about.
And kind of speaking of remoteemployees, that was another
topic we want to cover today.
Tim, do you want to talk alittle bit about kind of some of
just sort of the keyconsiderations when you're
dealing with a remote workforce?
(25:44):
Maybe, you know, including like,well, if they're working
remotely, they could bepotentially working from
anywhere.
You know, what law applies tothese people?
SPEAKER_01 (25:52):
Yeah, absolutely.
And I mean, you know, Ireferenced it a bit ago, but I
mean, talk about the law havingto grow up to meet the cultural
moment.
I mean, the example I alwaysgive to people is every And of
course, there was remote workbefore the COVID-19 pandemic.
But I think we're just in suchan entirely different world.
And I always have been, for thelast five years or so, been
(26:15):
giving people the example of theemployer that I was working
with.
I believe it was immediatelybefore the pandemic, like
January or February of 2020.
And they had an employee.
It was a local company.
It was not a national companythat had offices all over.
But they had an employee.
who was effectively doing anoffice job, you know, white
(26:37):
collar, worked at a computer,you know, type job.
And he or she, I won't say, giveany more details, but had a
medical condition that hadarisen.
And lo and behold, the doctorthat this employee was seeing
was in an entirely differentstate and just so happened to be
nearer to the employee's family.
(26:58):
And so it was one of thesesituations that creates a lot of
suspicion among the employees.
about, oh, this employee nowwants to work remotely with
their child in another statebecause the specialist that
they're seeing, that's wherethat specialist is based.
And just to give an example ofhow we're just in a totally
(27:19):
different world than we werefive and a half years ago, this
was, again, an office job whereyou dial up and you're working
on a computer all day and takingphone calls.
And I remember being told andbelieving it pretty strongly Oh,
well, this this job can'tpossibly be done remotely.
You know, that's that's almostscoffing at it.
Now, fast forward a few monthsand I was doing my job remotely.
(27:44):
Huge swaths of the economy weredoing their jobs remotely.
So so, yeah, it creates it'sit's it's a whole new world in
that sense.
And while I do think there's alittle bit of a again, I don't
want to say backlash, but Ithink the pendulum has swung a
little bit, you know, moretowards, you know, back in the
80s.
office, and I think we'llcontinue to see that pendulum
(28:07):
swing back and forth, you know,putting aside what's the best,
you know, what's the bestbusiness function, you're going
to have people who want to workremotely or need to work
remotely due to, you know, anaccommodation issue.
And we went over it, you know,in our talk in July.
It triggers just about everyimaginable issue.
(28:28):
I remember, you know, if you'rethinking to take the workers'
compensation perspective on it.
If somebody falls down thestairs at their house, that's
very likely not a compensablework comp injury.
But if they injure themselves ona piece of equipment that
they're using to do their job,particularly something that
(28:50):
you've provided them to do theirjob, that very likely is a
compensable work comp injury.
So yeah, it triggers wage andhour.
It triggers tax.
I know my partners who practicein immigration regularly get
questions from their clients interms of, oh, well, this
employee is going to work fromSpain or is going to work from
(29:12):
Australia next semester or nextyear.
Please let me know how thatworks.
And we've gotten so far downthis path that sometimes people
have to be reminded like, well,that's a question of Spanish
law.
That's a question of Australianlaw and Australian immigration
or tax law.
So, I mean, it just goes to showyou how far we've gotten into
the remote workforce And otherthan in the accommodation space
(29:36):
being a big part of it.
So I do want to talk a littlebit about that because you're
going to get, before I launchmore and more into the
accommodation space, you'regoing to get more and more
requests for accommodations towork remotely.
And you're going to need toevaluate that from the typical
reasonable perspective, engagingin the interactive dialogue, the
(29:57):
same as you do everything else.
But you do before, if and whenyou grant those types of
accommodations, You're going towant to consider all sorts of
wage and hour, all sorts ofother labor and employment
issues, which I know our slidesare probably available.
We went over the whole litany ofthem.
But yeah, as Gary was justalluding to, the boot up idea of
(30:18):
wage and hour, how does thatwork in a remote employee?
We all know, I think, from abasic wage and hour perspective,
that if we're aware thatsomebody is working, then even
if they're not supposed to beworking that time or if they
weren't permitted to workovertime or something like that,
(30:38):
if we're aware that they'reworking, which I think you can
look at all the technologicalways that we're aware that our
employees are working.
I mean, even 15 years ago when Ifirst started practicing, I was
dealing with cases of, you know,oh, this person was responding
to text messages and emails longafter their working hours.
So how can we possibly say weweren't aware that they were
(31:00):
working?
I think as the technologiesincreases, and our ability to
monitor people's keystrokes andstuff like that, it's going to
get more and more difficult tosay there's no clock in, clock
out, leave the office type thingin the remote workspace.
Gary, what do you see from awage and hour perspective in the
remote work world?
SPEAKER_02 (31:19):
Well, I think a couple of things jump out.
One is tracking time worked.
just like in an office job, ifyou're working remotely, you
still have to be, you know, justas rigorous in keeping track of
employees' time.
And I think when employees areworking remotely, non-exempt
employees really is what we'refocused on in this discussion is
(31:43):
there may be a tendency to be alittle more lax, right?
It's like, well, I kind of work.
The employee might be like,well, I'm kind of working
throughout the day, takinglittle breaks when I want to,
whatever.
It's flexible.
That works for that employee,right?
But it still is important toaccurately and rigorously track
employees' hours work.
So if they're working sort of onand off throughout the day, they
(32:06):
should be clocking in and out onand off throughout the day and
accurately recording when theystart and stop in states that,
well, even under federal law, ifyou're going to give people meal
breaks, and especially in statesthat mandate meal breaks, you
need to be rigorous about thatas well.
Again, there might be a tendencyto think, well, they're at home,
(32:27):
they can kind of take breakswhenever they want.
We don't have to really worryabout that.
Well, you still do, and you needto document them.
And you need to make sure, youknow, you're still complying
with all the legal requirementsthat would apply to an at home,
or I'm sorry, an in office inwhen they are working from home.
(32:47):
So that's something that'sreally important.
And you mentioned, you know, Ithink keystroke monitors, like
those are some technologies thatmaybe is sort of the flip side
of timekeeping, which ismonitoring whether employees are
really working, right?
And are they working the hoursthat they're recording?
That can be another concern.
And you mentioned like timeskeystroke monitors and whatnot,
(33:09):
which can be somewhat sometimescontroversial.
So, you know, employees mightfeel like they're under a
surveillance state whenemployers are doing that.
But again, from bothperspectives, tracking time and
monitoring hours worked and timeworked is really important.
SPEAKER_01 (33:27):
Yeah, and you allude to it, but there is a
flexibility in remote work andthere are people who are much
more traditional that don't likethat.
But I'll tell you, it's here tostay.
And when you've got that levelof flexibility, it brings in the
ultimate labor and employmentquestion of are we treating
(33:49):
similarly situated peopleequally, right?
So it's a nightmare scenario of,oh, I've got two people who work
remotely, you know, one of whomgets to take breaks and clock in
and out whenever he or she feelslike it as long as they do a
full eight.
But this person who worksremotely, if there's an argument
that I'm not allowing them tohave that privilege or to have
(34:13):
that same flexibility, or myin-office employees, I'm not
allowing them to have thatflexibility.
You know, that's a recipe for,you know, some sort of disparate
treatment claim, and mayberightly or wrongly, but it's a
problem whenever you've gotemployees who are theoretically
subject to the same standardsand job descriptions and stuff
(34:33):
like that, who are beingmanaged, even if by different
people, but especially by thesame person in an entirely
different way.
So, you know, that's theultimate thing to think about
is, are we treating everybodyequally as much as possible.
SPEAKER_02 (34:47):
Yeah.
And another thing that jumps outto me in terms of wage and hour
issues is expense reimbursementfor remote employees and whether
you need to be in need to and orshould be reimbursing employees
for all those remote workexpenses, whether it's using
their cell phone, becauseprobably many times when
employees are working remotely,they're using their personal
(35:08):
cell phones to communicate theirInternet service because they
most likely need to add accesscompany systems.
So under the federal law, underthe FLSA, expense reimbursement
is not required unless it wouldactually, you know, those
expenses that are unreimbursedwould actually sort of
effectively drop yourcompensation below minimum wage.
(35:31):
But some state laws likeCalifornia, where I practice, do
require expense reimbursement,and there's other states out
there as well.
California tends to be at theforefront of this, but there's
other states out there that haveexpense reimbursement.
laws.
And California has, for someyears, courts have found that if
you're required to use a cellphone for work, the employer
(35:53):
needs to reimburse a portion ofyour cell phone plan.
And that's true, even if youhave, say, an unlimited calling
and data plan.
So you're not actually spendingany more money to use it for
work, and you would have had itregardless of work.
Well, California law says youneed to, employer needs to
reimburse a portion of that,because they can't, like, pass
(36:14):
those expenses on to theemployee.
And that's been sort ofextrapolated to other types of
remote work expenses likepotentially internet.
And the law is really evolvingin this area, but there's a
variety of other types ofexpenses that at least arguably
might need to be reimbursed,say, in California and
(36:35):
potentially other states thathave expense reimbursement
requirements like not just cellphone and internet, but maybe
your electricity, because ifyou're working from home, you're
using more electricity duringthe day.
Maybe you're heating, airconditioning, maybe arguably
some portion of the space thatyou use.
So if you have a spare bedroomthat you've turned into a home
(36:56):
office and you use that forwork, well, maybe there's an
argument that some portion ofyour mortgage or rent the
employer is on the hook forbecause you're essentially, you
know, that's an expense thatyou're arguably incurring and
using for work.
And I've seen those inCalifornia, those kinds of
claims asserted.
(37:17):
The law isn't really settled onhow far that can be taken, but
plaintiffs are certainly makingthose arguments.
So I think that you'll probablysee more and more of that in
other states.
But even if you operate in astate where expense
reimbursement is not mandated,there's still going to be the
(37:37):
question of, are you going tochoose to inverse employees for
those expenses because there maybe an expectation that you will.
And then there's a couple ofdifferent ways you might
approach it.
You might have an employeeactually turning their actual
expenses.
This was my phone bill thismonth.
This was my internet, whatever.
That can get burdensome from anadministrative standpoint.
(37:58):
You might also choose to justpay a flat stipend per month,
which is much simpler.
But then the question aboutwhat's the right amount is
always sort of There's notreally no like bright line rules
and determine exactly what theright amount is.
And there can be advantages anddisadvantages to a stipend.
(38:20):
Obviously, a stipend is easierto administer.
It's predictable.
Employees don't have to submitbills or anything like that.
It's just, you know, let's say$75 a month,$50 a month,$100 a
month, whatever it is.
And that's going to say arguablycover all your remote work
expenses.
So in the disadvantages, though,is you might be potentially
over-reimbursing employees.
(38:41):
You might be under-reimbursingthem.
And then another risk is that itmay be taxable as wages, because
under IRS rules, if you'repaying them employees a remote
work stipend that covers sort ofall of their remote work
expenses without any need tosubmit bills or anything, then
that may be treated as taxablewages.
In contrast, I think under theIRS rules, if it's just a cell
(39:05):
phone reimbursement plan, youcan do a flat that stipend,
that's not taxable.
But if it's not just a cellphone reimbursement plan, but
it's some broader reimbursementplan that's intended to cover a
variety of expenses, and youjust do it as a flat amount,
then that may be taxable.
So now the employee might haveto pay taxes on that, needs to
(39:25):
be reported.
You might have to think about,well, do we need to gross it up
to account for that?
So it can get complicated, evenin states that aren't requiring
reimbursement.
But if you choose to do that,then there's There's a very, you
know, various considerations andthey can have, you know, legal
consequences.
I know, Tim, you were starting,you had talked about
(39:47):
complications in the remote worksetting, but I know that this is
an area of law where there's alot of, you know, a lot of
emerging issues, a lot of, youknow, it's not, there's, it
seems like there's you know, thetypes of things that need to be
accommodated just keep growingand the laws keep expanding in
(40:07):
this area.
So what are some of the kind of,you know, kind of beyond just
the remote work setting, butjust really what are sort of
some of the key sort of emergingaccommodation issues out there?
SPEAKER_01 (40:19):
Absolutely.
Yeah.
I'm going to talk, I'm going tobring us home here and I'm going
to talk about, you know, bothreligious accommodations, which
were subject to a fairly recentSupreme Court decision and And
it isn't, I'll just say upfrontthat religious discrimination,
religious accommodation issuesare not things that I've seen
(40:39):
come up a ton in my practice,but it does when there's an
important case like this thatcomes out, it is important to
remind ourselves of what's goingon here.
And I will also say that we'vebeen told by EEOC that claims of
religious discrimination, claimsof failure to religiously
accommodate under the newadministration are being given
(41:01):
higher scrutiny, and that canimpact how EEOC is conducting an
investigation, how EEOC isconducting conciliation
discussions, and that's thecontext that I've seen it
discussed recently about, was inthe context of a conciliation
agreement, that certain things,certain terms, because it was a
religious case, had to go up toa higher level of approval.
(41:24):
So, yeah, I'm going to talkabout both Title VII religious
accommodations, and so I'll talkabout that for I think that we
all understand what thenon-discrimination elements of
Title VII deal with.
Obviously, we don't take anyemployment actions, hiring,
(41:45):
firing, promotion, demotion, allthose things.
We don't make those based uponanything other than job-related
issues.
That includes race, gender, andit does include religion.
Where ADA and Title VIIreligious Religious are the two
major points where employershave positive obligations beyond
(42:08):
just the negative obligationsof, well, don't discriminate,
don't do this.
Religious is the area anddisability, which I'll talk
about second, where employers dohave affirmative obligations to
go beyond.
And where this comes up is wherethere's a conflict between a
religious practice and anindividual's job.
(42:30):
So one of the big things tothink about is what is religion?
I mean, that's a philosophicalquestion, and I would tell you
that under Title VII and underEEOC guidance, it's much broader
than we might think of in thecolloquial sense.
Obviously, take any of the majorreligions in the U.S., you're
going to have dozens or evenhundreds of denominations that
(42:57):
are practicing it quitedifferently, and they are united
by what might seem to anoutsider to be very small
similarities.
And so that means that I've hadtons of people come to me.
I'll use pandemic as an example.
We had lots of accommodationsrequests associated with vaccine
(43:18):
mandates.
We had lots of accommodationrequests associated with masks.
And we had those not only in theADA space, but in the religious
space as well.
And I had people tell me, well,that's not what the Bible says,
or that's not what that meansthat that person is saying.
And the problem is that becausethere's that huge diversity and
because inherently of the FirstAmendment, we're not going to
(43:40):
get courts coming in and tellingsomebody, well, that's not
really what your religion saysor you're not practicing that
correctly.
And when you explain it topeople in that sense, that it
really does impact a FirstAmendment consideration that the
government is not going to getinvolved in those kinds of
decisions.
And then that means that you'regoing to own Yeah.
(44:06):
And that's that's tough.
That's tough to push back on.
And really, the only context inwhich I've seen that be
successful is when you havecontemporaneous, real time, you
know, evidence that the employeeis not being sincere.
Like if you're able to go totheir Facebook or you're having
other employees who they'retelling, hey, that I'm not
(44:28):
really believe I don't reallybelieve this.
I'm just saying it because Iwant to get that day off or I'm
just saying it because I don'twant to take the COVID vaccine.
or something like that.
Other than that, you're notgoing to win on whether
something is sincerely held.
You can ask for supportingdocumentation.
I always worry a little bit whenwe get into the question of
(44:53):
asking for supportingdocumentation.
And also, just from a practicalstandpoint, it's probably not
going to get you anywherebecause there is no real rule
about, well, what qualifies assupporting documentation.
documentation that's going tosupport the employee's position.
I've had people, and asfrustrating as it was, I had
(45:13):
people that were downloadingthings off of a certain website
that were even for sale in termsof, hey, here's a document
that's going to prove yourreligious accommodation.
Or it could be something assimple as a letter from a
practitioner or a clergy figureto provide that supporting
(45:34):
documentation.
And we're talking about this,the converse in the disability
space in a minute, but you kindof, when you kind of have to
start with the assumption thatyou're not going to win on the
idea of is it sincerely held, isit really even a religion,
because EEOC has guidance thatlots of things that don't
(45:54):
qualify in my mind of what, inthe colloquial sense of what is
a religion, it doesn't have tobe something that's widely
practiced, it doesn't have to besomething that's formally
practiced, it doesn't have to beassociated with any known sect
or denomination.
It can even be things thatreally veer more into the
(46:14):
philosophical of EEOC hasguidance that it has to concern
ultimate ideas about life,purpose, and death.
And unfortunately, theboundaries of this are really
governed by the fact that therethankfully aren't tons of these
types of claims and there aren'ttons of employees who are out
there really pushing theboundaries of this.
(46:35):
I think we got to the point inthe COVID pandemic of seeing
people really kind of push theboundaries of what they were
willing to say was theirreligion.
You can certainly come up withlots of hypotheticals about,
well, what if I said that thiswas my philosophy and does that
qualify as a religion?
You're not usually going to seethose kinds of issues come up in
(46:56):
reality.
So the recent case was Groff v.
DeJoy, which was decided by theSupreme Court a few years ago
and dealt with a postal worker.
And the specific facts of itdealt with mail delivery on
Sunday, which, of course, when Iwas growing up, there was no
mail delivery on Sunday and itwas no issue.
(47:17):
But with the advent ofe-commerce, there became more
and more and more and moreprivate deliveries through the
USPS.
And ultimately, Mr.
Groff was ultimately came to ahead with the Postal Service
over being required to work onSundays.
Ultimately, the Supreme Courtruled in this to overrule the
(47:40):
standard for what is an undueburden under a TWA case from the
70s, I believe.
And the TWA case had taken theposition that anything beyond a
de minimis burden on theemployer is an undue burden.
Groff rejects that and saysthat's far too narrow, and it
ultimately is, they don't takethis position, but ultimately
(48:03):
saying that such an employerfriendly standard is not going
to fly and reaches the pointthat that if it's creating
substantial increased cost inrelation to the conduct of a
particular business, then youmight be in the area of undue
burden.
So really, this is bringingTitle VII religious
(48:24):
accommodations fairly in linewith disability accommodations
under ADA, which is what I'mgonna talk about next.
And ADA and its statecorollaries, these are, again,
really thorny issues.
And especially when you work inthe confluence of, I mean, you
(48:47):
may have an employee situationthat impacts ADA accommodations,
it might impact FMLA, it mightimpact your own company's
personal STD or LTD, short-termdisability, long-term disability
policies, and also work comp.
And whenever I have a case, youalways have to really think
(49:08):
about it in all of thosedifferent areas.
I mean, I I've had employers whowould take the position of, Oh,
we don't, we don't provide lightduty.
And then when you really diginto it, then you find that they
do provide light duty all thetime for a work comp injury.
So that's just an example of,well, we can't accommodate that
with light duty, except that wedo accommodate light duty in
(49:29):
other situations and creatingthe inference that we're
treating ADA accommodations in aless favorable light.
Um, and, and just very recentlyI dealt with a case of, um, a
person who, when their FMLAexpired, was immediately let go.
And the idea was that, well,they must have applied for LTD,
(49:51):
and that's why.
We weren't able to find thatproof.
So reasonable accommodations arewhat are important.
This is a tough one that lawyerssay a lot, the word reasonable,
but it makes it verycircumstantial.
In the ADA space, there are nota to create a new job for
(50:13):
somebody.
You don't have to grantindefinite leave.
And removing an essentialfunction is not going to be a
reasonable accommodation.
I'm going to put a big asteriskon that last one, because what
are the essential functions?
And I will just tell you thatit's great to have job
descriptions.
It's great to say that these arethe essential functions.
(50:35):
If you're going to fight overwhether or not something's an
essential function inlitigation, that's going to get
to the space of of, well, okay,you put on paper that those are
the essential functions.
How does the job work inreality?
We are getting pretty close tothe end of our time.
So I'm going to wrap up here.
But Gary, did you have anythingyou wanted to add on the ADA
(50:56):
front or other types ofaccommodations?
SPEAKER_02 (50:59):
No, no, nothing to add.
I thought that was great.
You hit on some of the reallykey emerging issues.
And I think with the religiousaccommodation, it's interesting
because I think that's an areawhere we've had a really
significant shift in the lawhere in just recent years.
So even I remember the beginningof the pandemic operating under
(51:19):
one standard and now we'reoperating under different
standards.
SPEAKER_01 (51:24):
Yeah.
And, you know, religion andpolitics are a recipe for
disaster in the workplacesometimes.
But thanks for everybody fortuning in today.
Gary, it was great to see youagain.
I hope you all caught ourpresentation last month.
And I know AHLA is very excitedabout the 2026 annual meeting in
(51:44):
New York.
It's been, I guess, many yearssince they've had it in New
York.
And I know I'm excited aboutthat and look forward to seeing
you all there as well.
SPEAKER_02 (51:52):
Thanks a lot, Tim.
This was
SPEAKER_01 (51:54):
fun.
UNKNOWN (51:57):
See you, Gary.
Bye.
SPEAKER_00 (52:00):
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For more information about AHLAand the educational resources
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And stay updated on breakinghealthcare industry news from
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(52:23):
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UNKNOWN (52:30):
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SPEAKER_01 (00:17):
Hello, everybody.
Good afternoon or good morning,depending on when and where
you're watching this.
My name is Tim Hilton.
I'm a partner practicing in thehealthcare space of labor and
employment law at Hush BlackwellLLP in Kansas City.
We're a full-service nationalfirm, and I practice, as I said,
in our labor and employmentgroup.
(00:38):
And I'm here with GaryMcLaughlin.
We're doing a podcast todayfollowing up on a talk that we
gave at the AHLA a 2025 annualmeeting in San Diego.
And we're going to cover a fewof the topics that we spoke
about last month.
Specifically, we're going totalk about some wage and hour
issues, some issues associatedwith remote work, and then also
(01:03):
some thorny religious and ADAaccommodation issues.
And Gary's going to start itoff, but Gary, why don't you
introduce yourself?
SPEAKER_02 (01:13):
Thanks, Tim.
I'm Gary McLaughlin.
I'm a partner at Mitchell'sSilberberg and Nupp in Los
Angeles, California.
And I practice employment law.
My practice includes a widerange of employment litigation
matters.
And I especially do a lot ofwage and hour class and
representative work.
And I'm going to start it offtalking about some key kind of
(01:37):
wage and hour issues.
First, we're going to talk aboutsome regular rate issues, which
can be tricky for lots ofemployers but especially
healthcare employers.
So I know employers across thehealthcare industry have been
facing a lot of staffingshortages and recruitment and
hiring and retention challengesover the last number of years.
(02:01):
And That's often led employersto kind of seek new and
innovative ways to recruit andretain employees through various
types of incentive compensation,benefit programs and whatnot.
And those can be great forretention and recruitment, but
they can also sometimes createsome perhaps unanticipated wage
(02:25):
and hour and particularlyovertime consequences, because
in many instances, those typesof benefits and incentive
compensation programs need to befactored into the regular rate
for purposes of calculating overtime.
And that's something that cansometimes be overlooked when
employers are rolling out a newcompensation or benefits or
(02:49):
incentive program.
So I'm gonna start just kind ofwith a basic overview of what
the regular rate is.
So as many of you probably know,who follow any employment, law
matters, the regular rate isn'tnecessarily just the base hourly
rate that an employee earns.
(03:09):
Other types of compensation mayneed to be included in that.
So the basic formula under theFLSA, the federal law, is that
the regular rate equals totalcompensation for the work week
divided by total hours workedfor the work week, subject to
certain statutory exclusions.
And that formula is simpleenough.
(03:31):
It seems very straightforwarduntil you really start getting
into the details and then it canbecome very complicated.
And there's a great deal of grayarea that exists in terms of
what needs to be included in theregular rate, how to include it
in the regular rate and whatnot.
(03:52):
So again, it can quickly becomecomplicated.
So kind of building on thatbasic, simple formula, some of
the general principles regardingthe regular rate.
So all compensate, generallyspeaking, all compensation for
hours worked or servicesrendered or performance needs to
(04:13):
be included in the regular rate.
So Again, that maybe soundssimple enough as well, but it
starts to get a little morecomplicated in determining,
well, is something actuallycompensation for hours worked or
not, or for services orperformance?
And that's where it can...
(04:34):
often get a little bit tricky.
So for example, some things thatsort of obviously need to be
included in the regular rate arethings like non-discretionary
bonuses.
If it's a bonus that's dictatedby a formula, you hit a certain
production target or whatever itmay be that's defined by
(04:55):
formula, it's non-discretionary.
If you hit those numbers, youget a bonus pursuant to a
particular formula or something.
That's pretty straightforward,pretty clear that that needs to
be included in the regular rate.
So that type of compensation isgoing to increase the regular
rate.
It's going to increase,therefore, the amount of
overtime compensation that isowed, how much overtime premium
(05:17):
is owed, if the employee worksovertime during that same
period.
But some other things that maybeare less obvious.
So per diems and stipends, thosemay need to be included in the
regular rate as well.
And I say may because it's notalways clear-cut.
It often depends on how theprogram actually works.
(05:37):
There may be per diems that donot need to be included in the
regular rate.
There may be some that do needto be included in the regular
rate, depending on how theyoperate and how they function
and how the program is set up.
Shift differentials is anotherthing that likely needs to be
included in the regular rate.
If an employee is getting paidextra to work certain shifts,
(05:57):
say an overnight shift, thingslike that, weekend shifts, and
there can be much more.
I'm going to talk about a fewkind of maybe somewhat common
kind of bonuses that come upwhen we're speaking, when we're
talking about employeerecruitment and retention.
So referral bonuses.
SPEAKER_01 (06:17):
Yeah, Gary, can I ask a question about this?
And maybe you're going to coverit, but how does it work when a
bonus might be earned over aperiod of time, but it's paid in
a given time?
Does that impact the regularrate for when it's paid or for
the entire time when the bonuswas being earned.
SPEAKER_02 (06:36):
Right.
So generally speaking, theregular rate is going to be
calculated and that incentivecompensation bonus or whatever
it is, is going to be factoredin over the period of time for
which it's earned, which may notnecessarily be when it's
actually paid.
It might be paid sometime afterthe end of a period, such as a
monthly bonus that's paid thefollowing pay period after the
(06:59):
close of the month or quarterlybonus that's paid sometime in
the following quarter.
But generally, you're going tolook at the time period for
which the compensation wasearned.
So if it's a monthly bonus,that's probably going to be the
month to which it applies.
If it's a quarterly bonus, it'sgoing to be likely the quarter,
the three-month period overwhich you actually earned that
(07:22):
bonus.
And that's where with some ofthese types of bonus programs
I'm going to talk about, it canbe a little unclear about what
that period is.
So a referral bonus, a bonuswhere an employee gets some sort
of bonus when they refer asuccessful candidate for hire.
Generally, that does not need tobe included in the regular rate,
although there are some caveats.
(07:43):
And I should say sort of at thebeginning that Generally, I'm
going to be kind of speaking interms of federal law, FLSA.
Many times state law tracks whatthe FLSA would require, but
there can be some deviations.
And so certain state law may bemore protective of employees.
(08:04):
For example, I practice inCalifornia and it's sort of
notoriously more protective ofemployees in many instances
compared to the FLSA.
So I'm going to be talking sortof usually in general terms
under the FLSA, but always bemindful of what state you're
operating in and whether therecould be differences under state
(08:25):
law in terms of what needs to beincluded in the regular rate or
how it needs to be calculated.
So a referral bonus...
Like I said, generally notincluded in the regular rate,
assuming that it's a voluntaryprogram.
These efforts don't involvesignificant amounts of time.
And it's really done after hoursamongst friends and colleagues
(08:49):
and neighbors and acquaintances.
It's kind of in a socialsetting.
It's not really supposed to looklike work.
A retention bonus.
So a bonus that's, say, you earnbecause you get hired and remain
employed for a certain period oftime.
Those generally do need to beincluded in the regular rate.
(09:11):
And I'm going to talk in amoment, Tim, about sort of
related to your question, whichis, well, how do you figure out
what period of time that appliesto?
A sign-on bonus.
So a bonus that's a flat amountthat's paid to someone when they
sign on to take the job.
That's sort of a maybe.
It kind of depends.
(09:32):
And one of the key factors iswhether that sign-on bonus needs
to be paid back if you don'tremain employed for a certain
period of time.
And if you do have to pay itback, if your employment ends,
let's say within a year orwhatever the time period is,
then it may need to be includedin the regular rate because then
it really, even though it mightbe called a sign-on bonus or a
(09:54):
signing bonus, it reallyfunctions as a form of retention
bonus in many ways.
So I mentioned retention bonusescan get complicated.
So let me just kind of give anexample to illustrate that.
Let's say, an employee has anoffer letter that says that they
get a retention bonus that'ssort of in several tiers.
(10:17):
It's$500 upon completing thefirst 90 days,$1,000 upon
completing the first year ofemployment, and then$5,000 upon
completing the second year ofemployment.
So we kind of have threedifferent payments that arguably
cover different periods of time.
It's probably pretty clear thatthe first$500 for the first to
(10:39):
complete the first 90 days, thatwas earned over the first 90
days of employment.
But what about these nextpayments, the subsequent
payments, that$1,000 that wasearned when you hit your
one-year anniversary?
Was that just earned for days 91through 365?
Or was it earned over that wholeyear because you had to be
(11:02):
employed over the entire year?
Same with that...
second anniversary bonus of$5,000.
Is that just for the second yearof employment or was it earned
over the first entire two yearsof employment?
And this may depend on how it'sdescribed in the offer letter
and how it actually, what thedescription is and what the plan
(11:25):
documents say.
So again, definitely a grayarea, but pay attention to the
details because it could dependon how it's worded, how it's
communicated to the employee.
Per diems is something else thatcan get tricky.
I think ostensibly per diems areusually kind of considered some
(11:46):
sort of payment for expensesthat an employee might incur
when they're traveling away fromthe regular workplace.
So for example, travel nursesand the like.
However, sometimes they canfunction more as a payment for
services rendered rather thanreimbursement for expenses.
So for example, let's say youget a flat amount per week Um...
(12:12):
If it doesn't vary based on howmany hours you worked and the
services performed, then thatmay be properly treated as
reimbursement for expenses, notwages for services rendered.
But sometimes it can fluctuate.
So for example, if there's aconnection, courts will look at
(12:34):
the connection between thepayment and hours worked.
Does the per diem go up if yourhours worked increase?
Or does it go down if you workfewer hours?
It may depend on whether the perdiem is paid regardless of
whether costs are actuallyincurred.
And it could also depend onwhether the employee is required
(12:56):
to provide any sort ofattestation regarding costs that
were incurred.
And if it fluctuates based onhours worked, if you're getting
it regardless of whether youactually incur costs, and if you
don't have to actuallydemonstrate that you incurred
any costs Then a court may lookat that and say, that really is
compensation for hours worked.
(13:19):
And that would be basicallytreated almost like just an
additional wage that you'reearning.
And that may need to be includedin the regular rate.
So be very careful when you'redealing with per diems, how
exactly that program works, howit's structured and how it's
paid.
A
SPEAKER_01 (13:39):
lot of- If you're at a stopping point, I just had a
thought and I wanted to just getyour thoughts on it.
I mean, all of this stuff, whenyou start talking about
calculating differently from 91to 365 and one to 90 and per
diems and all this stuff, Imean, it strikes me that that
counsels employers to simplifythings and pay a higher rate up
(14:01):
front, but it strikes me thatthe talent pool has an
expectation of bonuses and othertypes of compensation that are
separate from your base pay oryour base salary.
I don't know if you want toreact to this, but I just think
it's an interestingself-fulfilling prophecy that
employers have started doingstuff like this and then your
(14:23):
competitors have to do it aswell because it's what the
talent pool is expecting.
SPEAKER_02 (14:27):
I think that's a good point.
I often deal with feel questionsfrom employers where they're
sort of paying a certain way.
It's like, well, why are youdoing it this way?
This seems perhaps morecomplicated than it needs to be.
Sometimes the answer is, well,that's what people expect.
They don't see a per diem.
For example, they're not goingto be happy.
You know, they're going to feellike somehow it's lesser, even
(14:48):
if maybe they're getting ahigher hourly rate.
SPEAKER_01 (14:51):
Yeah.
And then, of course, the counterbeing if you're going to gross
it up on the front end and endup paying people a significantly
higher hourly rate, there'sgoing to be a ton of people who
don't work out.
And so you've sort of anchoredyourself at that point of, hey,
this is what we pay.
And I could see that being a,creating a separate business
(15:12):
problem.
So, but it is interesting thatthese stuff gets so complicated
and it is sort of what peopleexpect to see in their offer
letters.
SPEAKER_02 (15:20):
Yeah.
And if we're talking about perdeems and specifically, it can
also be tax consequences andthat can be a motivation.
If it's done properly and it'streated as reimbursement, the
employee may not owe taxes onthat.
If it's If you eliminate the perdiem and just increase their
hourly rate, then that's alltaxable.
So that can make a difference toemployees as well.
(15:40):
And I suppose employers need abalance like...
the benefits that come throughsimplicity versus the risks that
come from maybe a morecomplicated program, one that
may be viewed as morecompetitive or desirable for
(16:02):
employees.
So I think it's smart foremployers to always kind of go
through that analysis and notjust sort of jump on a bandwagon
without thinking about whythey're doing it, what those
legal consequences are.
SPEAKER_01 (16:15):
It's kind of the converse of what I see in the
exempt versus non-exempt space.
And when we went back and forthwith various changes to the
exemptions and changes to thesalary basis test, I had
conversations with people aboutlike, well, just make that
person hourly if it's going tobe complicated.
(16:38):
And it's sort of the same thingbecause there is a stigma is not
the right word for it.
But, you know, people have anexpectation of being salaried,
even though from an economicperspective, they might be
better off to be to benon-exempt.
So it's kind of one of thosethings, how the culture
developed around FLSA.
And we have to we as lawyers andcounselors have to, you know,
(17:00):
work that into our analysis.
SPEAKER_02 (17:02):
Right.
And when you talk aboutclassification issues, then, you
know, normally you might think,well, these employees are
classified as exempt.
We don't have to really, we canpay sort of whatever we want.
We don't have to worry aboutovertime and regular rate.
And that's generally true ifthey're properly classified.
But if that classification getschallenged, then all of these
(17:23):
other incentive compensationbonuses, et cetera, that you're
paying on top of salary suddenlymight need to get retroactively
included in the regular rate fordamages and suddenly, you know,
you might have, you know, inhindsight, you say, well, I
never would have paid them thisway if I had realized that.
(17:43):
So that's something.
SPEAKER_01 (17:44):
Yeah, it all sounds great until you find out that
they're not actually exempt.
Right.
And you might not find that outuntil you're well down the road
in litigation.
SPEAKER_02 (17:53):
Right.
And in California, where Ipractice, generally, when there
is a misclassification case,whatever compensation you pay
them, salary, bonuses, etcetera, that's considered
compensation only fornon-overtime hours.
And there may be an opportunityto calculate it differently
under the FLSA, but that can bevery punitive for employers in
(18:13):
California where, say, you'rescheduled to work 50 hours a
week and you get a healthysalary for that.
Well, if you're deemed to bemisclassified, the law in
California is going to say thatsalary, no matter how high it
was, was only for 40 hours perweek.
And now you have automaticovertime.
And what's more, that overtimepremium under California is
(18:33):
going to be for all those hoursabove 40 or above eight in a day
it's going to be time and a halfso you're gonna you get really
hit um hard so we're not reallydelving into classification
issues today but it's always inthe background when you are
classifying people as um exemptthere's that risk that if you
don't get it right or if it'schallenged then all these other
(18:55):
things we're talking about comecome into play and can be um you
know expensive to say theEmployers often with staffing
shortages and recruitmentchallenges and retention
challenges often are looking fornew and innovative ways to
attract and retain employees.
(19:16):
They're coming up with new bonusplans, new incentive
compensation plans that don'tnecessarily fit the traditional
molds of a regular bonus or aretention bonus or whatever.
There, I think you have to beespecially careful and really
understand how that compensationbenefit program works.
(19:36):
And here's just an example.
And this is one that I mentionedduring our, when we spoke at the
annual meeting earlier thissummer.
And this comes from just anexample from a publication that
I saw where a company had a starsystem for home caregivers.
It was a home care company.
And there was this like starsystem that you earn different
(19:57):
ways in terms of performance andhours and whatnot.
And then you earn these pointsessentially, and those all got
kind of wrapped up into thispoint system where then you
could choose certain benefits.
You earned a certain number ofpoints and then a certain number
of points might allow you toselect a certain benefit and
(20:20):
more points may allow you toselect a different benefit.
And so then the question theremay be like, well, okay, how
does that work?
If you earn more stars byworking more hours or doing a
better job and your performanceor the services you're
providing, then those are thingsthat may need to be included in
(20:43):
the regular rate.
I don't know, Tim, if you'veseen other examples in your
practice of sort of kind ofcreative bonuses that employers
are doing that might, you know,kind of perhaps raise flags
about whether there could beregular rate implications.
SPEAKER_01 (20:57):
Yeah, I mean, anytime I don't do a ton of wage
and hour litigation orcounseling, but, you know,
whenever I see, especially inthe healthcare space, because we
know there's shift differentialand all sorts of things that are
at play here.
And, you know, I mean, I dodamages calculations all the
time and leading up tomediation, okay, well, what's
(21:17):
this person's, you know, whatare their lost wages to date or
what do we think their lostwages through trial are going to
be?
And it gets, yeah, reallycomplicated when you're looking
at, okay, well, they were 40 inthis pay period and they were 35
at a shift differential and thenthey had this bonus and that
bonus.
And, you know, it gets reallycomplicated.
So absolutely.
(21:38):
And when you are, you know, inreal time trying to, you know,
calculate it, because, ofcourse, that's the other thing
that's interesting here is thatno one, of course, in 2025 is
sitting there doing the maththemselves here.
And I know that there areemployers that are, you know,
oh, gosh, the payroll systemmade a mistake.
(21:58):
Well, guess what?
You know, the court doesn'tnecessarily care about that, at
least depending on thejurisdiction that you're in.
Because if the data got put inincorrectly and somebody got
shorted what they were owed,we're responsible for how we
calculate it, even when it'sbeing done by a third-party
payroll processor.
I
SPEAKER_02 (22:17):
even sometimes hear from employers that, well, our
payroll system won't allow us todo that, to calculate this or do
a certain calculation, and thatcan be problematic.
The last thing I want to talkabout in terms of wage and hour
issues is what I call boot upclaims, which is kind of what it
(22:40):
sounds like.
An employee, generally allemployees nowadays need to get
onto a computer system to work.
And computers take time to bootup.
On, it needs to boot up.
You may need to get into certaininternal programs or platforms
to do your job, whether it'stimekeeping platforms or other
types of platforms.
(23:01):
And all of those programs taketime to open, booting up,
turning the computer on, thenlogging into a certain program,
etc.
And we're seeing more and moreclaims and lawsuits over this
issue.
And sometimes it may be what youmight think is very small
amounts of time, a few minuteshere and there, but those can
(23:23):
arise, those can give rise toclaims and can add up.
And courts will look at, underfederal law at least, you know,
whether the time is de minimisis still an issue that under the
FLSA they'll look at, butthey'll also look at whether
that time is integral orindispensable to their principal
(23:44):
activity.
So if you need to use a certainprogram to do your job and you
need to log on and boot up andget into that program before you
can really start your work, thenthere may be a good argument
that that is compensable time,at least if it's not de minimis.
But I know, I don't When I getin in the morning and I turn on
(24:05):
my computer, it takes severalminutes before I can really do
anything on the computer.
SPEAKER_01 (24:10):
It's funny you say that because one of my first
jobs before law school wasworking in a call center.
And I'm just now remembering asyou say it that, I mean, I never
went and did the math on this,but they always said that, oh,
well, you start getting paid assoon as your first call is
placed.
And there's all this logging inand dialing up in the old days
(24:30):
of how it works.
And I'm sure that would not fly,at least in 2025, from a boot-up
perspective, and probably didn'tfly back then either, but nobody
knew.
SPEAKER_02 (24:41):
And call centers is where a lot of these cases have
arisen, and that's where we seethese claims a lot.
But you can also see it withother types of remote employees.
So a lot of employees areworking, maybe doing, say,
something, operating as a callcenter, right?
But they're not going into anoffice necessarily.
They're working from home, orthey're doing maybe some sort of
telehealth function or whateverit is.
(25:03):
an administrative function andthey're doing it from home.
And when they get their coffeeand go into their second bedroom
or whatever and home office andturn on their computer, that
might take a few minutes.
And you might think, well,they're just at home.
They're not really working, butthat could arguably be
compensable.
(25:23):
So with remote employers, it'ssomething to think about.
And kind of speaking of remoteemployees, that was another
topic we want to cover today.
Tim, do you want to talk alittle bit about kind of some of
just sort of the keyconsiderations when you're
dealing with a remote workforce?
(25:44):
Maybe, you know, including like,well, if they're working
remotely, they could bepotentially working from
anywhere.
You know, what law applies tothese people?
SPEAKER_01 (25:52):
Yeah, absolutely.
And I mean, you know, Ireferenced it a bit ago, but I
mean, talk about the law havingto grow up to meet the cultural
moment.
I mean, the example I alwaysgive to people is every And of
course, there was remote workbefore the COVID-19 pandemic.
But I think we're just in suchan entirely different world.
And I always have been, for thelast five years or so, been
(26:15):
giving people the example of theemployer that I was working
with.
I believe it was immediatelybefore the pandemic, like
January or February of 2020.
And they had an employee.
It was a local company.
It was not a national companythat had offices all over.
But they had an employee.
who was effectively doing anoffice job, you know, white
(26:37):
collar, worked at a computer,you know, type job.
And he or she, I won't say, giveany more details, but had a
medical condition that hadarisen.
And lo and behold, the doctorthat this employee was seeing
was in an entirely differentstate and just so happened to be
nearer to the employee's family.
(26:58):
And so it was one of thesesituations that creates a lot of
suspicion among the employees.
about, oh, this employee nowwants to work remotely with
their child in another statebecause the specialist that
they're seeing, that's wherethat specialist is based.
And just to give an example ofhow we're just in a totally
(27:19):
different world than we werefive and a half years ago, this
was, again, an office job whereyou dial up and you're working
on a computer all day and takingphone calls.
And I remember being told andbelieving it pretty strongly Oh,
well, this this job can'tpossibly be done remotely.
You know, that's that's almostscoffing at it.
Now, fast forward a few monthsand I was doing my job remotely.
(27:44):
Huge swaths of the economy weredoing their jobs remotely.
So so, yeah, it creates it'sit's it's a whole new world in
that sense.
And while I do think there's alittle bit of a again, I don't
want to say backlash, but Ithink the pendulum has swung a
little bit, you know, moretowards, you know, back in the
80s.
office, and I think we'llcontinue to see that pendulum
(28:07):
swing back and forth, you know,putting aside what's the best,
you know, what's the bestbusiness function, you're going
to have people who want to workremotely or need to work
remotely due to, you know, anaccommodation issue.
And we went over it, you know,in our talk in July.
It triggers just about everyimaginable issue.
(28:28):
I remember, you know, if you'rethinking to take the workers'
compensation perspective on it.
If somebody falls down thestairs at their house, that's
very likely not a compensablework comp injury.
But if they injure themselves ona piece of equipment that
they're using to do their job,particularly something that
(28:50):
you've provided them to do theirjob, that very likely is a
compensable work comp injury.
So yeah, it triggers wage andhour.
It triggers tax.
I know my partners who practicein immigration regularly get
questions from their clients interms of, oh, well, this
employee is going to work fromSpain or is going to work from
(29:12):
Australia next semester or nextyear.
Please let me know how thatworks.
And we've gotten so far downthis path that sometimes people
have to be reminded like, well,that's a question of Spanish
law.
That's a question of Australianlaw and Australian immigration
or tax law.
So, I mean, it just goes to showyou how far we've gotten into
the remote workforce And otherthan in the accommodation space
(29:36):
being a big part of it.
So I do want to talk a littlebit about that because you're
going to get, before I launchmore and more into the
accommodation space, you'regoing to get more and more
requests for accommodations towork remotely.
And you're going to need toevaluate that from the typical
reasonable perspective, engagingin the interactive dialogue, the
(29:57):
same as you do everything else.
But you do before, if and whenyou grant those types of
accommodations, You're going towant to consider all sorts of
wage and hour, all sorts ofother labor and employment
issues, which I know our slidesare probably available.
We went over the whole litany ofthem.
But yeah, as Gary was justalluding to, the boot up idea of
(30:18):
wage and hour, how does thatwork in a remote employee?
We all know, I think, from abasic wage and hour perspective,
that if we're aware thatsomebody is working, then even
if they're not supposed to beworking that time or if they
weren't permitted to workovertime or something like that,
(30:38):
if we're aware that they'reworking, which I think you can
look at all the technologicalways that we're aware that our
employees are working.
I mean, even 15 years ago when Ifirst started practicing, I was
dealing with cases of, you know,oh, this person was responding
to text messages and emails longafter their working hours.
So how can we possibly say weweren't aware that they were
(31:00):
working?
I think as the technologiesincreases, and our ability to
monitor people's keystrokes andstuff like that, it's going to
get more and more difficult tosay there's no clock in, clock
out, leave the office type thingin the remote workspace.
Gary, what do you see from awage and hour perspective in the
remote work world?
SPEAKER_02 (31:19):
Well, I think a couple of things jump out.
One is tracking time worked.
just like in an office job, ifyou're working remotely, you
still have to be, you know, justas rigorous in keeping track of
employees' time.
And I think when employees areworking remotely, non-exempt
employees really is what we'refocused on in this discussion is
(31:43):
there may be a tendency to be alittle more lax, right?
It's like, well, I kind of work.
The employee might be like,well, I'm kind of working
throughout the day, takinglittle breaks when I want to,
whatever.
It's flexible.
That works for that employee,right?
But it still is important toaccurately and rigorously track
employees' hours work.
So if they're working sort of onand off throughout the day, they
(32:06):
should be clocking in and out onand off throughout the day and
accurately recording when theystart and stop in states that,
well, even under federal law, ifyou're going to give people meal
breaks, and especially in statesthat mandate meal breaks, you
need to be rigorous about thatas well.
Again, there might be a tendencyto think, well, they're at home,
(32:27):
they can kind of take breakswhenever they want.
We don't have to really worryabout that.
Well, you still do, and you needto document them.
And you need to make sure, youknow, you're still complying
with all the legal requirementsthat would apply to an at home,
or I'm sorry, an in office inwhen they are working from home.
(32:47):
So that's something that'sreally important.
And you mentioned, you know, Ithink keystroke monitors, like
those are some technologies thatmaybe is sort of the flip side
of timekeeping, which ismonitoring whether employees are
really working, right?
And are they working the hoursthat they're recording?
That can be another concern.
And you mentioned like timeskeystroke monitors and whatnot,
(33:09):
which can be somewhat sometimescontroversial.
So, you know, employees mightfeel like they're under a
surveillance state whenemployers are doing that.
But again, from bothperspectives, tracking time and
monitoring hours worked and timeworked is really important.
SPEAKER_01 (33:27):
Yeah, and you allude to it, but there is a
flexibility in remote work andthere are people who are much
more traditional that don't likethat.
But I'll tell you, it's here tostay.
And when you've got that levelof flexibility, it brings in the
ultimate labor and employmentquestion of are we treating
(33:49):
similarly situated peopleequally, right?
So it's a nightmare scenario of,oh, I've got two people who work
remotely, you know, one of whomgets to take breaks and clock in
and out whenever he or she feelslike it as long as they do a
full eight.
But this person who worksremotely, if there's an argument
that I'm not allowing them tohave that privilege or to have
(34:13):
that same flexibility, or myin-office employees, I'm not
allowing them to have thatflexibility.
You know, that's a recipe for,you know, some sort of disparate
treatment claim, and mayberightly or wrongly, but it's a
problem whenever you've gotemployees who are theoretically
subject to the same standardsand job descriptions and stuff
(34:33):
like that, who are beingmanaged, even if by different
people, but especially by thesame person in an entirely
different way.
So, you know, that's theultimate thing to think about
is, are we treating everybodyequally as much as possible.
SPEAKER_02 (34:47):
Yeah.
And another thing that jumps outto me in terms of wage and hour
issues is expense reimbursementfor remote employees and whether
you need to be in need to and orshould be reimbursing employees
for all those remote workexpenses, whether it's using
their cell phone, becauseprobably many times when
employees are working remotely,they're using their personal
(35:08):
cell phones to communicate theirInternet service because they
most likely need to add accesscompany systems.
So under the federal law, underthe FLSA, expense reimbursement
is not required unless it wouldactually, you know, those
expenses that are unreimbursedwould actually sort of
effectively drop yourcompensation below minimum wage.
(35:31):
But some state laws likeCalifornia, where I practice, do
require expense reimbursement,and there's other states out
there as well.
California tends to be at theforefront of this, but there's
other states out there that haveexpense reimbursement.
laws.
And California has, for someyears, courts have found that if
you're required to use a cellphone for work, the employer
(35:53):
needs to reimburse a portion ofyour cell phone plan.
And that's true, even if youhave, say, an unlimited calling
and data plan.
So you're not actually spendingany more money to use it for
work, and you would have had itregardless of work.
Well, California law says youneed to, employer needs to
reimburse a portion of that,because they can't, like, pass
(36:14):
those expenses on to theemployee.
And that's been sort ofextrapolated to other types of
remote work expenses likepotentially internet.
And the law is really evolvingin this area, but there's a
variety of other types ofexpenses that at least arguably
might need to be reimbursed,say, in California and
(36:35):
potentially other states thathave expense reimbursement
requirements like not just cellphone and internet, but maybe
your electricity, because ifyou're working from home, you're
using more electricity duringthe day.
Maybe you're heating, airconditioning, maybe arguably
some portion of the space thatyou use.
So if you have a spare bedroomthat you've turned into a home
(36:56):
office and you use that forwork, well, maybe there's an
argument that some portion ofyour mortgage or rent the
employer is on the hook forbecause you're essentially, you
know, that's an expense thatyou're arguably incurring and
using for work.
And I've seen those inCalifornia, those kinds of
claims asserted.
(37:17):
The law isn't really settled onhow far that can be taken, but
plaintiffs are certainly makingthose arguments.
So I think that you'll probablysee more and more of that in
other states.
But even if you operate in astate where expense
reimbursement is not mandated,there's still going to be the
(37:37):
question of, are you going tochoose to inverse employees for
those expenses because there maybe an expectation that you will.
And then there's a couple ofdifferent ways you might
approach it.
You might have an employeeactually turning their actual
expenses.
This was my phone bill thismonth.
This was my internet, whatever.
That can get burdensome from anadministrative standpoint.
(37:58):
You might also choose to justpay a flat stipend per month,
which is much simpler.
But then the question aboutwhat's the right amount is
always sort of There's notreally no like bright line rules
and determine exactly what theright amount is.
And there can be advantages anddisadvantages to a stipend.
(38:20):
Obviously, a stipend is easierto administer.
It's predictable.
Employees don't have to submitbills or anything like that.
It's just, you know, let's say$75 a month,$50 a month,$100 a
month, whatever it is.
And that's going to say arguablycover all your remote work
expenses.
So in the disadvantages, though,is you might be potentially
over-reimbursing employees.
(38:41):
You might be under-reimbursingthem.
And then another risk is that itmay be taxable as wages, because
under IRS rules, if you'repaying them employees a remote
work stipend that covers sort ofall of their remote work
expenses without any need tosubmit bills or anything, then
that may be treated as taxablewages.
In contrast, I think under theIRS rules, if it's just a cell
(39:05):
phone reimbursement plan, youcan do a flat that stipend,
that's not taxable.
But if it's not just a cellphone reimbursement plan, but
it's some broader reimbursementplan that's intended to cover a
variety of expenses, and youjust do it as a flat amount,
then that may be taxable.
So now the employee might haveto pay taxes on that, needs to
(39:25):
be reported.
You might have to think about,well, do we need to gross it up
to account for that?
So it can get complicated, evenin states that aren't requiring
reimbursement.
But if you choose to do that,then there's There's a very, you
know, various considerations andthey can have, you know, legal
consequences.
I know, Tim, you were starting,you had talked about
(39:47):
complications in the remote worksetting, but I know that this is
an area of law where there's alot of, you know, a lot of
emerging issues, a lot of, youknow, it's not, there's, it
seems like there's you know, thetypes of things that need to be
accommodated just keep growingand the laws keep expanding in
(40:07):
this area.
So what are some of the kind of,you know, kind of beyond just
the remote work setting, butjust really what are sort of
some of the key sort of emergingaccommodation issues out there?
SPEAKER_01 (40:19):
Absolutely.
Yeah.
I'm going to talk, I'm going tobring us home here and I'm going
to talk about, you know, bothreligious accommodations, which
were subject to a fairly recentSupreme Court decision and And
it isn't, I'll just say upfrontthat religious discrimination,
religious accommodation issuesare not things that I've seen
(40:39):
come up a ton in my practice,but it does when there's an
important case like this thatcomes out, it is important to
remind ourselves of what's goingon here.
And I will also say that we'vebeen told by EEOC that claims of
religious discrimination, claimsof failure to religiously
accommodate under the newadministration are being given
(41:01):
higher scrutiny, and that canimpact how EEOC is conducting an
investigation, how EEOC isconducting conciliation
discussions, and that's thecontext that I've seen it
discussed recently about, was inthe context of a conciliation
agreement, that certain things,certain terms, because it was a
religious case, had to go up toa higher level of approval.
(41:24):
So, yeah, I'm going to talkabout both Title VII religious
accommodations, and so I'll talkabout that for I think that we
all understand what thenon-discrimination elements of
Title VII deal with.
Obviously, we don't take anyemployment actions, hiring,
(41:45):
firing, promotion, demotion, allthose things.
We don't make those based uponanything other than job-related
issues.
That includes race, gender, andit does include religion.
Where ADA and Title VIIreligious Religious are the two
major points where employershave positive obligations beyond
(42:08):
just the negative obligationsof, well, don't discriminate,
don't do this.
Religious is the area anddisability, which I'll talk
about second, where employers dohave affirmative obligations to
go beyond.
And where this comes up is wherethere's a conflict between a
religious practice and anindividual's job.
(42:30):
So one of the big things tothink about is what is religion?
I mean, that's a philosophicalquestion, and I would tell you
that under Title VII and underEEOC guidance, it's much broader
than we might think of in thecolloquial sense.
Obviously, take any of the majorreligions in the U.S., you're
going to have dozens or evenhundreds of denominations that
(42:57):
are practicing it quitedifferently, and they are united
by what might seem to anoutsider to be very small
similarities.
And so that means that I've hadtons of people come to me.
I'll use pandemic as an example.
We had lots of accommodationsrequests associated with vaccine
(43:18):
mandates.
We had lots of accommodationrequests associated with masks.
And we had those not only in theADA space, but in the religious
space as well.
And I had people tell me, well,that's not what the Bible says,
or that's not what that meansthat that person is saying.
And the problem is that becausethere's that huge diversity and
because inherently of the FirstAmendment, we're not going to
(43:40):
get courts coming in and tellingsomebody, well, that's not
really what your religion saysor you're not practicing that
correctly.
And when you explain it topeople in that sense, that it
really does impact a FirstAmendment consideration that the
government is not going to getinvolved in those kinds of
decisions.
And then that means that you'regoing to own Yeah.
(44:06):
And that's that's tough.
That's tough to push back on.
And really, the only context inwhich I've seen that be
successful is when you havecontemporaneous, real time, you
know, evidence that the employeeis not being sincere.
Like if you're able to go totheir Facebook or you're having
other employees who they'retelling, hey, that I'm not
(44:28):
really believe I don't reallybelieve this.
I'm just saying it because Iwant to get that day off or I'm
just saying it because I don'twant to take the COVID vaccine.
or something like that.
Other than that, you're notgoing to win on whether
something is sincerely held.
You can ask for supportingdocumentation.
I always worry a little bit whenwe get into the question of
(44:53):
asking for supportingdocumentation.
And also, just from a practicalstandpoint, it's probably not
going to get you anywherebecause there is no real rule
about, well, what qualifies assupporting documentation.
documentation that's going tosupport the employee's position.
I've had people, and asfrustrating as it was, I had
(45:13):
people that were downloadingthings off of a certain website
that were even for sale in termsof, hey, here's a document
that's going to prove yourreligious accommodation.
Or it could be something assimple as a letter from a
practitioner or a clergy figureto provide that supporting
(45:34):
documentation.
And we're talking about this,the converse in the disability
space in a minute, but you kindof, when you kind of have to
start with the assumption thatyou're not going to win on the
idea of is it sincerely held, isit really even a religion,
because EEOC has guidance thatlots of things that don't
(45:54):
qualify in my mind of what, inthe colloquial sense of what is
a religion, it doesn't have tobe something that's widely
practiced, it doesn't have to besomething that's formally
practiced, it doesn't have to beassociated with any known sect
or denomination.
It can even be things thatreally veer more into the
(46:14):
philosophical of EEOC hasguidance that it has to concern
ultimate ideas about life,purpose, and death.
And unfortunately, theboundaries of this are really
governed by the fact that therethankfully aren't tons of these
types of claims and there aren'ttons of employees who are out
there really pushing theboundaries of this.
(46:35):
I think we got to the point inthe COVID pandemic of seeing
people really kind of push theboundaries of what they were
willing to say was theirreligion.
You can certainly come up withlots of hypotheticals about,
well, what if I said that thiswas my philosophy and does that
qualify as a religion?
You're not usually going to seethose kinds of issues come up in
(46:56):
reality.
So the recent case was Groff v.
DeJoy, which was decided by theSupreme Court a few years ago
and dealt with a postal worker.
And the specific facts of itdealt with mail delivery on
Sunday, which, of course, when Iwas growing up, there was no
mail delivery on Sunday and itwas no issue.
(47:17):
But with the advent ofe-commerce, there became more
and more and more and moreprivate deliveries through the
USPS.
And ultimately, Mr.
Groff was ultimately came to ahead with the Postal Service
over being required to work onSundays.
Ultimately, the Supreme Courtruled in this to overrule the
(47:40):
standard for what is an undueburden under a TWA case from the
70s, I believe.
And the TWA case had taken theposition that anything beyond a
de minimis burden on theemployer is an undue burden.
Groff rejects that and saysthat's far too narrow, and it
ultimately is, they don't takethis position, but ultimately
(48:03):
saying that such an employerfriendly standard is not going
to fly and reaches the pointthat that if it's creating
substantial increased cost inrelation to the conduct of a
particular business, then youmight be in the area of undue
burden.
So really, this is bringingTitle VII religious
(48:24):
accommodations fairly in linewith disability accommodations
under ADA, which is what I'mgonna talk about next.
And ADA and its statecorollaries, these are, again,
really thorny issues.
And especially when you work inthe confluence of, I mean, you
(48:47):
may have an employee situationthat impacts ADA accommodations,
it might impact FMLA, it mightimpact your own company's
personal STD or LTD, short-termdisability, long-term disability
policies, and also work comp.
And whenever I have a case, youalways have to really think
(49:08):
about it in all of thosedifferent areas.
I mean, I I've had employers whowould take the position of, Oh,
we don't, we don't provide lightduty.
And then when you really diginto it, then you find that they
do provide light duty all thetime for a work comp injury.
So that's just an example of,well, we can't accommodate that
with light duty, except that wedo accommodate light duty in
(49:29):
other situations and creatingthe inference that we're
treating ADA accommodations in aless favorable light.
Um, and, and just very recentlyI dealt with a case of, um, a
person who, when their FMLAexpired, was immediately let go.
And the idea was that, well,they must have applied for LTD,
(49:51):
and that's why.
We weren't able to find thatproof.
So reasonable accommodations arewhat are important.
This is a tough one that lawyerssay a lot, the word reasonable,
but it makes it verycircumstantial.
In the ADA space, there are nota to create a new job for
(50:13):
somebody.
You don't have to grantindefinite leave.
And removing an essentialfunction is not going to be a
reasonable accommodation.
I'm going to put a big asteriskon that last one, because what
are the essential functions?
And I will just tell you thatit's great to have job
descriptions.
It's great to say that these arethe essential functions.
(50:35):
If you're going to fight overwhether or not something's an
essential function inlitigation, that's going to get
to the space of of, well, okay,you put on paper that those are
the essential functions.
How does the job work inreality?
We are getting pretty close tothe end of our time.
So I'm going to wrap up here.
But Gary, did you have anythingyou wanted to add on the ADA
(50:56):
front or other types ofaccommodations?
SPEAKER_02 (50:59):
No, no, nothing to add.
I thought that was great.
You hit on some of the reallykey emerging issues.
And I think with the religiousaccommodation, it's interesting
because I think that's an areawhere we've had a really
significant shift in the lawhere in just recent years.
So even I remember the beginningof the pandemic operating under
(51:19):
one standard and now we'reoperating under different
standards.
SPEAKER_01 (51:24):
Yeah.
And, you know, religion andpolitics are a recipe for
disaster in the workplacesometimes.
But thanks for everybody fortuning in today.
Gary, it was great to see youagain.
I hope you all caught ourpresentation last month.
And I know AHLA is very excitedabout the 2026 annual meeting in
(51:44):
New York.
It's been, I guess, many yearssince they've had it in New
York.
And I know I'm excited aboutthat and look forward to seeing
you all there as well.
SPEAKER_02 (51:52):
Thanks a lot, Tim.
This was
SPEAKER_01 (51:54):
fun.
UNKNOWN (51:57):
See you, Gary.
Bye.
SPEAKER_00 (52:00):
If you enjoyed this episode, be sure to subscribe to
AHLA's Speaking of Health Lawwherever you get your podcasts.
For more information about AHLAand the educational resources
available to the health lawcommunity, visit
AmericanHealthLaw.org.
And stay updated on breakinghealthcare industry news from
the major media outlets withAHLA's Health Law Daily Podcast,
exclusively for AHLAComprehensive members.
(52:23):
To subscribe and add thisprivate podcast feed to your
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Daily Podcast.
UNKNOWN (52:30):
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