We feel like a broken record, because we’ve said it before: the Affordable Care Act is still here. We said the same thing after each of two Supreme Court challenges to central portions of the law, both of which (in 2012 and 2015) fell flat. After campaigning on a promise to swiftly repeal the landmark healthcare law, and signing an executive order stating the new administration’s priority was to repeal and replace the Affordable Care Act (ACA), the president was unsuccessful in convincing Congress to begin dismantling the law. So, we can say it once again: the ACA survives another day, and employers need to continue to operate as if it will be here to stay.
- Obama Administration’s Fair Pay And Safe Workplaces Rule Falls Victim To Congressional Disapproval Resolution3.27.17
Today, President Trump signed his approval to a joint resolution passed by Congress disapproving of Executive Order 13673, better known as the “Fair Pay and Safe Workplaces” executive order, and more commonly referred to as the “blacklisting” rules (a term which includes regulations and guidance issued in conjunction therewith). President Trump’s signature sets ablaze yet another piece of the Obama administration’s legacy, permanently blocking rules which would have required federal contractors to disclose violations of numerous workplace laws when bidding for work with the government.
- IEPs Must Meet “Markedly More Demanding” Standard From Now On3.22.17
Today, in a unanimous decision crafted by Chief Justice John Roberts, the Supreme Court decided that the Individuals with Disabilities Education Act (IDEA) requires public schools to provide a heightened level of educational benefits for children with disabilities. This new and heightened standard will impact the crafting of individualized education programs (IEPs) for those students.
The U.S. Supreme Court held today in a 6 to 2 decision that “structured dismissals” resolving Chapter 11 bankruptcy proceedings cannot deviate from the Bankruptcy Code’s priority scheme without the consent of the affected parties – which means that businesses must ensure workers receive their unpaid wages as part of any such resolution. Specifically, the Court rejected a structured dismissal that left a group of WARN Act plaintiffs without any compensation, telling employers, essentially, that they must squeeze blood from a stone to compensate their workers.
In a decision released today, a 6 to 2 majority of the Supreme Court restricted the president’s power to fill high-level administrative positions without the Senate’s advice and consent, handing a victory to an employer in a labor dispute. The decision has wide-ranging implications for this and future presidents’ ability to choose nominees for important positions in administrative agencies such as the National Labor Relations Board (NLRB), and continues a recent trend of limiting presidential power recently seen in the Court’s June 2016 immigration decision.
In the most stinging legal rebuke yet to President Trump’s efforts to bar certain immigrants from reaching the country’s shores, a federal judge in Hawaii late Wednesday ordered the president’s second travel ban be temporarily blocked on a national basis. Characterizing the second travel ban as plainly motivated by religious discriminatory animus against Muslims, District Court Judge Derrick K. Watson granted the state of Hawaii’s request for a temporary restraining order, and set into motion the latest chapter of the continuing legal battle over the president’s immigration policies.
The Equal Employment Opportunity Commission (EEOC) has just added a fourth option for employees to initiate charges against their employers – an online portal. On March 13, 2017, the agency announced the Online Inquiry and Appointment System (OIAS), another step forward in its cyber-presence, and another avenue for individuals to initiate employment discrimination claims against their employers. What do employers need to know about this latest development?
- Workers Left Waiting For Groundbreaking Decision3.14.17
On Friday, the 11th Circuit Court of Appeals declined to extend Title VII’s protections to sexual orientation discrimination, but reinforced that employees may allege sex discrimination claims when they face workplace discrimination for failing to conform to gender norms. The court confirmed that employees, regardless of sexual orientation, can sue under the flagship federal civil rights statute to seek relief for harassment, discrimination, and retaliation, but only if the discrimination is related to alleged gender nonconformity. While the decision does not signal a significant change in the law, it stands as a reminder to employers that sex discrimination claims can manifest in various ways (Evans v. Georgia Regional Hospital).
On March 21, 2017, a new gun law goes into effect in Ohio that will expand the rights of concealed carry permit holders, allow active duty members of the armed forces to carry weapons without a concealed carry license under certain conditions, and broaden the scope of places where concealed carry license holders may carry guns. But what does the new law mean for Ohio’s workplaces?
- Is There A Women’s March On Employers? What Employers Need To Know About The ‘Day Without A Woman’ Protests3.7.17
After the Women’s March on Washington earlier this year, organizers have now called for a worldwide protest to take place this Wednesday, March 8 – fittingly to take place on International Women’s Day, a day historically known for protests advocating for gender equality. Those organizing the protest are encouraging women to take the day off from paid and unpaid work, avoid shopping for one day (with exceptions for small, women- and minority-owned businesses), and wear red in solidarity with A Day Without A Woman.
In a somewhat unusual ruling last week, a California Court of Appeal announced that its previous February 2015 decision in the case of Gerard v. Orange Coast Memorial Medical Center, which partially invalidated healthcare meal waivers, was wrong. Accordingly, as a result of the March 1, 2017 ruling, healthcare employers in California will not face retroactive liability if they used waivers prior to October 5, 2015.
In a second attempt to pass legal muster, President Trump signed another controversial executive order today altering the initial travel ban blocked by the federal courts. The executive order, effective March 16, 2017, creates a 90-day freeze on all entry for individuals from Syria, Iran, Libya, Somalia, Yemen, and Sudan who are outside the U.S. on March 16, did not have a valid visa at 5:00 p.m. EST on January 27, 2017, and do not have a valid visa on March 16. This new executive order, titled “Protecting the Nation from Foreign Terrorist Entry Into The United States,” targets six of the same Muslim-majority countries as the original order, but now excludes Iraq.
Today the U.S. Supreme Court announced that it would not entertain arguments in GG v. Gloucester County School Board, a case that would have been the Court’s first significant opportunity to weigh in on gender identity issues. Instead, the Court remanded the matter back to the 4th Circuit Court of Appeals for further consideration in light of the Trump Administration’s recent decision to withdraw federal guidance that instructed public schools to allow students to use the bathroom that corresponds to their gender identity.
- California Auto Dealers Beware: Commission-Paid Dealership Employees Entitled To Separate Rest Period Pay3.3.17
A California appellate court ruled on February 28, 2017, that employees paid on a commission basis must be separately compensated for legally required rest periods (Vaquero v. Stoneledge Furniture LLC). Although this decision did not specifically involve automobile dealerships, this decision could impact any dealerships in California compensating individuals completely or partially on a commission basis (e.g., salespersons, finance managers, service advisors). If your dealership is in this category, you should review this decision to determine whether you need to immediately adjust your pay practices.
A California court quietly granted ride-sharing giant Uber a significant victory last week in the ongoing misclassification battle over whether its drivers are properly classified as independent contractors. Although this ruling received scant attention due to the procedural quirks surrounding the decision, its significance cannot be overstated. Sharing economy companies everywhere could – and should – cite this ruling if their classification structures are challenged by plaintiffs’ attorneys or government agencies, but should also proactively apply the lessons taught by this case to reduce the chances of being caught in a misclassification trap to begin with.
- Blurred Lines: Texas Supreme Court Applies Hazy Distinction Between Workplace Harassment And Assault3.2.17
The Texas Supreme Court recently blurred the distinctions between harassment and assault claims as they apply to employer liability under the state’s antidiscrimination statute. In considering whether a plaintiff is required to expressly plead a state law sexual harassment cause of action when bringing such a claim, the court said that plaintiffs need only bring a sexual assault tort claim – carrying with it no limitations on damages and no administrative exhaustion requirements – when the gravamen of the complaint is assault as opposed to harassment.
The world of labor and employment law is always evolving at a rapid pace, leading us to summarize a few of the most significant cases from the previous month. February 2017 was another month that saw dramatic developments, leading us to once again expand our summary even beyond a typical “top 10” list. In order to make sure that you stay on top of the latest developments, here is a quick review of the 12 biggest stories from last month that all employers need to know about.
A California appellate court ruled yesterday that workers paid on a commission basis must be separately compensated for legally required rest periods (Vaquero v. Stoneledge Furniture LLC). When combined with a state Supreme Court ruling late last year requiring employers to provide workers with duty-free rest breaks, this one-two punch of court decisions will force many California employers to alter their pay practices or face potentially devastating financial consequences.
Last week, President Trump signed an executive order requiring every federal agency to establish a “Regulatory Reform Task Force” to eliminate what he considers to be unnecessary and burdensome regulations hampering the American economy.
In a unanimous decision, the U.S. Supreme Court today ruled that a disabled child’s parents were not legally required to jump through certain additional hoops and exhaust administrative remedies in a service animal dispute before suing a school for damages under federal antidiscrimination law. This is a concerning decision for schools and school districts, as it will likely lead to an increase in lawsuits (Fry v. Napoleon Community Schools).
- Schools No Longer Face Federal Requirement To Permit Transgender Students To Access Restrooms Corresponding With Their Gender Identities2.23.17
Late yesterday, the Trump administration revoked Obama-era federal guidelines that had instructed public schools to permit transgender students to use bathrooms that match their gender identity.
- The Good, The Bad, And The Ugly: A Quick Primer On Proposed California Employment Legislation In 20172.23.17
With the February 17 deadline to introduce bills in the California Legislature having come and gone, now is a good opportunity to take stock of what the coming year portends for labor and employment legislation in California. In short, the message for California employers is: “hang on – it’s going to be an interesting ride.”
Yesterday, the New York Industrial Board of Appeals struck down a regulation adopted by the New York Department of Labor (NYDOL) which sought to regulate the manner in which employers pay wages. The impending regulation, which was set to take effect March 7, 2017, would have discouraged New York employers from paying their workers by direct deposit or debit card. Although there is still a chance the regulation might be revived, New York employers should take note of this February 16, 2017 ruling and adjust pay practices as necessary.
After his initial selection of Andrew Puzder was scuttled by staunch opposition from Democrats and worker advocates, President Trump nominated Alexander Acosta to be the country’s next Secretary of Labor. This Cabinet-level position heads the U.S. Department of Labor (USDOL), one of the federal agencies that has the widest and deepest impact on employers across the country. Assuming that Acosta is confirmed by the Senate, what should employers know about him in order to predict what life will be like under his tenure as part of the Trump administration?
Last week, the Justice Department withdrew the pending legal challenge that had sought to reverse the federal court decision blocking the implementation of the Obama administration’s transgender bathroom policy for public schools. By announcing it would drop the government’s appeal (which was launched by the Obama Department of Justice), the Trump administration signaled that it will take a more conservative approach to the issue, allowing local school districts to develop their own bathroom and locker room policies without federal guidance. However, the Supreme Court will soon wade into the fray and could lay down new standards for public schools and their transgender policies.
As pay equity litigation heats up across the country, the 2nd Circuit Court of Appeals issued a January 26 decision that should help employers in New York, Connecticut, and Vermont combat claims brought under the federal Pay Equity Act (EPA). The decision in Chiaramonte v. The Animal Medical Center limits plaintiffs’ ability to use statistical evidence of pay disparity between the sexes, by itself, to prove an EPA claim, reaffirming and expanding upon the principle first set out by the 2nd Circuit in a 2001 decision.
Employee walkouts and protests are anticipated across the country on Thursday, February 16, and Friday, February 17, as immigrants and others disappointed by the Trump administration’s position with respect to immigration plan to stage a “Day Without Immigrants” protest. The activity, organized on social media by various worker advocacy organizations, ostensibly aims to demonstrate to the president (and others) the daily effect that immigrants have on the nation.
- Onerous Workplace Safety Rules Among Many That Could Face The Axe2.10.17
Earlier this year, the U.S. House of Representatives voted to approve the Midnight Rules Relief Act by a vote of 238-184. This Republican-backed measure would amend the Congressional Review Act and allow Congress to overturn, en masse, any federal regulation enacted during the final year of a president’s term. If approved by the Senate and signed into law, the Act could have broad implications for any regulation passed in 2016, including, among many other workplace law regulations, the recordkeeping rule issued by the Occupational Safety and Health Administration (OSHA) and its related anti-retaliation provisions.
- Federal Appeals Court Rejects Government Bid To Reinstate Travel Ban2.9.17
After hearing an emergency oral argument late Tuesday, the 9th Circuit Court of Appeals agreed with a lower federal court judge and late today upheld the nationwide temporary restraining order that blocks the president’s controversial immigration executive order.
- A Full Complement Of SCOTUS Justices Bodes Well For Employers2.8.17
When the U.S. Supreme Court announced several weeks ago it would settle a dispute about whether employers can use mandatory class action waivers with their workers, most expected a final decision by June 2017. Employers were prepared to spend the next several months with their fingers crossed hoping the decision would fall in their favor, seeking clarity to a topic that has become increasingly muddled over the past year.
Many people watch the Super Bowl for the game. Others watch for the commercials. And perhaps even more watch for both. In years past, it would not have been uncommon for people to spend the Monday after the Super Bowl at the water cooler talking about the commercials with Clydesdales, puppies, talking frogs, or celebrities. But this year, and perhaps more so than any other year in recent memory, there were numerous ads that carried or otherwise promoted political and social messages.
- Governor’s Signature Means Missouri Will Become 28th Right-To-Work State2.6.17
Earlier today, Governor Eric Greitens signed a bill into law that will lead Missouri to join the ranks of states that are governed by “right-to-work” laws. When the law goes into effect on August 28, 2017, employees in unionized workplaces will be allowed to opt out of joining a union or paying union dues if they so choose. Employers in the state should familiarize themselves with this significant new development, as it could soon have an impact on your workplace.
- What Latest Development Means for Employers2.6.17
On Friday evening, February 3, a federal judge in Washington state granted a nationwide temporary restraining order blocking the president’s controversial immigration executive order. The executive order, which had prevented refugees from seven predominantly Muslim nations from entering the country, including some green card and visa holders, is now temporarily enjoined from being enforced by border officials.
The world of labor and employment law is always evolving at a rapid pace, leading us to summarize a few of the most significant cases from the previous month. January 2017 was a month like no other, however, leading us to expand our summary even beyond a typical “top 10” list. In order to make sure that you stay on top of the latest developments, here is a quick review of the 12 biggest stories from last month that all employers need to know about.
Late yesterday, President Trump selected Judge Neil Gorsuch to fill the vacant seat on the Supreme Court (SCOTUS) bench. Assuming he is confirmed by the Senate, Justice Gorsuch would occupy a critical position on the Court, assumedly aligning with the more conservative bloc of justices to form a slim majority in tight cases. The question on the mind of employers: how would Justice Gorsuch treat workplace law cases that come before the Supreme Court? To answer that question, we once again turn to the Magic 8-Ball.
Earlier today, the White House issued a statement announcing that it would continue to enforce President Obama’s 2014 executive order that protects the rights of the LGBTQ community in the federal contractor workplace. While this statement does not break any new legal ground, it is a reminder to all federal contractors that they have an obligation to ensure antidiscrimination measures apply to all workers regardless of sexual orientation or gender identity.
Late Friday afternoon, President Trump signed a controversial executive order focusing on immigration issues. The executive order, titled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals” and signed on January 27, 2017, created an immediate freeze on all entry for individuals from Syria, Iran, Libya, Somalia, Yemen, Iraq, and Sudan. Both immigrant and non-immigrant visa holders were impacted by the executive order.
In a pair of sure-to-be controversial decisions, the 4th Circuit Court of Appeals created a new and troubling standard to determine whether individuals should be considered “joint employees” of multiple entities. The new standard, which makes it far easier for employers to be caught up as defendants in wage and hour claims, may very well be adopted by other courts and leak into other areas of the country. For this reason, all employers should familiarize themselves with the January 25, 2017 decisions and adapt their operations as necessary.
Starting on January 22, 2017, all employers are now required to use the new I-9 form (version date 11/14/2016) to verify the identity and employment authorization eligibility of employees. A link to the new form can be found here. Failure to ensure proper completion and retention of Forms I-9 may subject you to civil money penalties of up to $2,156 per I-9 form, and, in some cases, criminal penalties.
Making good on some of his campaign promises, President Trump signed two executive orders relating to immigration on January 25, 2017. He is expected to sign several more within the next few days.
Over the past several days, President Trump has passed numerous executive orders addressing immigration. Thus far, none of these orders have targeted employment-based immigration, but it is possible that this topic could be addressed at any point in the days or weeks ahead. In particular, the H-1B visa category drew attention from Trump during the campaign.
- 3 Things To Know About Favorable Court Decision1.26.17
A federal appeals court upheld the termination of an employee who tried to blame her misconduct on her disability during the termination meeting itself. The court ruled that “retroactive leniency” was not a reasonable accommodation under the Americans with Disabilities Act (ADA), and therefore the employer had no obligation to apply the brakes to its ongoing disciplinary process despite the employee’s pleas.
The stage is officially set. The Atlanta Falcons will be playing the New England Patriots in Super Bowl 51 on Sunday, February 5, 2017, and no doubt your employees are very much aware of the upcoming game. A good many of them will be among the estimated 115 million television viewers who will be watching, whether they are passionate fans, more interested in the halftime show, or just there for the commercials.
- President Trump Meets With Union Leaders On First Business Day In Office: Should Employers Be Worried?1.24.17
On Monday, President Trump’s first full business day in the White House, the newly sworn-in president met with a consortium of about a dozen union leaders and members for what was described as a “listening session.” Although he had met with a similarly sized group of business executives and leaders earlier in the day, some employers might be nervous to learn about this union meeting. However, if early reports about the meeting are any indication, employers should have little concern about the meeting, which seemed to be more about job creation than labor law.
Philadelphia has become the first city in the United States to prohibit employers from inquiring about a prospective employee’s wage history during the hiring process. Philadelphia Bill No. 160840, also known as the “wage equity ordinance,” was passed by the City Council on December 8, 2016 and signed by Mayor Jim Kenney late yesterday. It will take effect on May 23, 2017 (120 days from the date of signing).
- Follow The 5-Step Plan To Ensure Compliance1.23.17
Effective immediately, federal contractors will need to comply with privacy training rules intended to ensure that their workforces protect personally identifiable information. As of January 19, 2017, federal contractors will need to follow a five-step plan to comply with the new rules issued by the Department of Defense, General Services Administration, and National Aeronautics and Space Administration.
- For Employers, It’s Business As Usual…For Now1.23.17
Shortly after being sworn in on Friday, President Trump signed an executive order which appears to begin to repeal the Affordable Care Act (ACA), following through on one of his primary campaign promises. However, the executive order seems to have no immediate impact on employers’ obligations under the law.
We are not yet through the first month of the New Year, but pay equity lawsuits have already dealt a one-two punch to employers: “one” being a million-dollar settlement between a legal and business research company and its employees, and “two” taking the form of a new lawsuit brought by a female automotive industry employee against automotive giant General Motors. Meanwhile, pay equity legislative activity has already cropped up in South Carolina (among other states), indicating that the pay equity legal boxing match between employees and employers is only in its first round.
On January 9, 2017, New York Governor Andrew Cuomo issued two executive orders aimed at addressing the perceived gender, race, and ethnicity-based wage gaps. Noting that the state government must lead by example and ensure equal pay for all New Yorkers, the two executive orders – which Governor Cuomo signed as part of his 2017 State of the State address – prevent state entities from asking job applicants about their compensation history and require state contractors to disclose data on the gender, race, ethnicity, job title, and salary of their employees.
- Employers Should Soon Have Clarity On Subject1.17.17
In a widely expected move, the U.S. Supreme Court just agreed to settle a dispute about whether employers can use mandatory class action waivers with their workers. The decision, which should be issued by June 2017, will provide clarity to a topic that has become increasingly muddled over the past year. Employers will spend the next several months with their fingers crossed hoping the decision falls in their favor.
January 2017 is one of those rare months including a Friday the 13th, which might bring to mind a horror movie where a seemingly vanquished killer somehow rises to his feet – once again! – to wreak havoc on his stunned victims. Just like an undead specter rising from the grave long after you think it’s been killed off, an employer recently faced a retaliation claim despite the fact that a 13-year gap existed between the alleged protected activity and the adverse action.
On January 9, 2017, Kentucky Governor Matt Bevin signed into law a bill that made Kentucky a right-to-work state. The law took effect immediately. Employers in the state should familiarize themselves with this significant new development, as it could have an impact on your workplace.
- Groundhog Day Comes Early For West Coast Auto Dealers: Another Loss In Service Advisor Exemption Battle1.10.17
In a disappointing but perhaps unsurprising decision, the 9th Circuit Court of Appeals once again ruled that service advisors employed by automobile dealerships do not qualify for the Section 13(b)(10)(A) overtime exemption under the federal Fair Labor Standards Act (FLSA). For dealers on the west coast, this might sound like a familiar story. In fact, you would be forgiven if you feel like you are reliving an early version of Groundhog Day and hearing the same story once again. You wouldn’t be far off.
To ring in the New Year, Governor Andrew Cuomo announced the creation of a 200-member multi-agency Minimum Wage Enforcement and Outreach Unit on January 2, 2017. The Unit’s goal is to ensure that all minimum wage workers in the state of New York are paid the proper rate. Here’s what in employers in New York need to know about this development.
- State Supreme Court Decision Forces Businesses To Get It Right The First Time1.4.17
If you are using a noncompetition agreement in Nevada, you may want to consider reviewing that agreement. The Nevada Supreme Court recently held that state courts shall not modify – or “blue pencil” – non-compete agreements in order to bring them into compliance with the law. The court explained that if a non-compete agreement contains even a single provision which “extends beyond what is necessary” to protect a company’s interests, then the entire agreement will be deemed unenforceable.
The world of labor and employment law is always evolving at a rapid pace. In order to make sure that you stay on top of the latest developments, here is a quick review of the eight biggest stories from last month that all employers need to know about:
- Eleventh Hour Ruling Impacts Healthcare Industry On Eve Of Implementation1.3.17
On Saturday, December 31, 2016, a federal judge in Texas entered a nationwide preliminary injunction barring the enforcement of antidiscrimination protections pertaining to transgender and abortion health services and insurance coverage under the Affordable Care Act (ACA). The decision impacts healthcare providers across the country and may require your immediate attention (Franciscan Alliance, et al. v. Burwell, et al.).
- Split In Circuits Could Lead To Supreme Court Intervention12.28.16
The 11th Circuit Court of Appeals ruled that a disabled worker forced to leave her position because of her physical impairment must compete for vacant jobs when seeking reassignment, handing a victory to her former employer. By concluding that employers have no obligation to provide preferential treatment to individuals with disabilities when attempting to accommodate them via reassignment, the court decision runs in direct conflict with various other circuits – and the EEOC – which have ruled otherwise. Unless and until the Supreme Court steps in to resolve the circuit split, employers must be sure to carefully navigate the various standards that exist across the country when accommodating their employees.
- Lessons To Make Sure Your Workers Are Prepared12.28.16
Before last week, late 1980s pop singer Richard Marx had not made news headlines since, well, the late 1980s. Over 20 years ago, Marx was very well known for his smooth tenor vocals and flowing mane of hair. He hit his peak when his popular song “Right Here Waiting” – the video for which has been viewed over 110 million times on YouTube – made it to number one on the Billboard Top 100 in 1989. Marx was not, however, widely viewed as someone who could teach lessons about best practices in workplace safety (although he did have a 1992 hit called “Hazard”).