- Decision Sets Up Inevitable Date At Supreme Court5.26.17
In a 10-3 decision, the 4th Circuit Court of Appeals yesterday upheld the nationwide injunction that had blocked President Trump’s second executive order banning certain travel into the country from taking effect. The Court held that the text of the second executive order, also known as EO-2, “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
Can a worker bring a disability discrimination claim under New York City law based solely on a perception of untreated alcoholism? We’ll soon find out, as the U.S. Court of Appeals for the 2nd Circuit has certified the question to the New York Court of Appeals, the highest court in the state. The answer to this question will determine whether the courtroom doors will open for another class of employees and applicants, and could also impact employer-sponsored rehabilitation programs in the state.
- Mandatory E-Verify, Boosted Enforcement Among Priority Requests5.25.17
President Trump’s proposed budget released by the White House earlier this week contains no real surprises when it comes to the immigration provisions. The budget supports President Trump’s promises to increase immigration enforcement, build a physical wall on the nation’s southern border, limit refugees, and reform the immigration system. Further, the budget requests the funds to implement the items contained in the president’s immigration executive orders signed in January.
- Three Lessons to Be Learned From 1st Circuit Decision5.25.17
A federal appellate court recently ruled that an employee’s request for 12 months of additional medical leave was not reasonable, and thereby upheld the dismissal of her Americans with Disabilities Act (ADA) lawsuit against her former employer. Employers can learn three important lessons from the May 2, 2017 decision.
- President’s Proposed Budget Seeks 6 Weeks Of Paid Leave For All Families5.23.17
The White House released the details of President Trump’s proposed budget today, and if the president has his way, employees will be eligible to receive up to six weeks of paid parental leave by the year 2020. However, employers will not be on the hook to provide the compensation for this program. Instead, the administration proposes that paid parental leave would be “fully offset” by a package of reforms to the state unemployment insurance system. While specific legislation still needs to be developed and approved by Congress to install this program, this marks the first time that such a leave proposal has been advanced in a presidential budget.
- OFCCP Will See Budget Slashed, Merger With EEOC By End Of FY20185.23.17
The proposed federal budget released today would have a dramatic impact on the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), the watchdog agency overseeing the federal government’s affirmative action programs. Not only does the budget proposal call for the OFCCP to be subsumed into the Equal Employment Opportunity Commission (EEOC) by the end of FY 2018 (September 30, 2018), but it would significantly slash the agency’s budget and employee allotment leading up to that consolidation.
- Scheduled Implementation Date Of July 1 Is Now Off The Table5.18.17
Employers will be relieved, at least temporarily, of the requirement to file injury information through an electronic recordkeeping system that was scheduled to take effect this July 1. The Occupational Safety and Health Administration (OSHA), which had issued a rule requiring the posting of such information for most employers in May 2016, announced yesterday that the filing deadline will be postponed for an undetermined period of time.
Many workers in Georgia who receive sick leave from their employers will soon be entitled to use such leave to care for family members, thanks to a new law signed into effect by Governor Nathan Deal last week. The new law does not require Georgia employers to provide sick leave, rather it allows employees to use already earned sick leave for the care of immediate family members. Accordingly, it is not expected to add significant burdens to employers in the state.
In an unanimous decision, the California Supreme Court held today that California’s law requiring one day of rest in seven looks only at the employer’s defined workweek when determining the applicable period of time to be analyzed for compliance and liability purposes, and does not specifically require employers to provide one day of rest after six preceding calendar days of work. This decision is a big relief for those employers who schedule employees week-by-week without necessarily considering when the employees worked the previous week, outlining a clear and direct way that employers can comply with the state’s Labor Code.
President Trump signed an executive order on religious liberty yesterday to commemorate the National Day of Prayer. Like many before it, the exact contents of this order were hotly anticipated, fueled by White House leaks and presidential tweets, with many speculating that the order would greatly affect employment and other civil rights laws.
The House of Representatives took the first affirmative step towards repeal and replacement of the Affordable Care Act (ACA) today. After a failed attempt to pass legislation earlier this year, the House gathered the needed votes to pass the American Health Care Act (AHCA) by a narrow 217-213 margin this afternoon. However, given that this is only the first preliminary step in a longer process, and given that the AHCA would probably be substantially revised before final implementation, employers should take no immediate actions in response to this development.
It’s hard to keep up with all the recent changes to labor and employment law. While it always seems to evolve at a rapid pace, the last few months have seen an unprecedented number of changes. April 2017 was another month that saw an above-average number of 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 13 biggest stories from last month that all employers need to know about.
- 5th Circuit Case Clarifies FLSA Exemption Standard For Offshore Workers5.3.17
A recent federal court decision may bring about a new wave of overtime claims by offshore workers, particularly those working within the territorial waters of Louisiana, Mississippi, and Texas (Halle v. Galliano Marine Service, LLC.) But does it mean a sea change in the way employers pay their workers?
New presidents are often judged based on their accomplishments in their first 100 days in office. President Trump is no exception to that rule. The Trump administration recently passed that milestone date, offering an opportunity for observers to assess how the initial stage of his presidency has gone. Just as we gathered our firm’s collective wisdom to offer predictions on what the Trump administration would mean for workplace law, we now tap back into the minds of the firm’s foremost thought leaders for a quick recap on how the first 100 days have treated the nation’s employers.
- Lewis v. Clarke And The Failed Expedition To Secure Tribal Rights: SCOTUS Rules Against Tribal Employee Immunity4.26.17
The U.S. Supreme Court unanimously ruled yesterday that tribal sovereign immunity does not apply to employees who are sued in their individual capacities, even if the alleged wrongdoing occurs while the employee is acting within the course and scope of employment by the tribe, and even when the tribe has agreed to indemnify the employee. Stated differently, the Court ruled that the doctrine of tribal sovereign immunity does not extend to tribal employees who are not being sued in their official capacity as agents of the tribe.
In a ruling that could leave employers fuming and possibly cursing, a federal appellate court ruled that an employee who used a public Facebook page to curse out not just his boss, but also his boss’s mother and entire family, should not have been fired from his job. Instead, the 2nd Circuit Court of Appeals decided late last week that the expletive-filled rant was protected by federal law because it was considered protected concerted activity (NLRB v. Pier Sixty, LLC).
The state of Florida is about to enact first-of-its-kind legislation that will ensure most ride-sharing drivers are independent contractors and not employees, eliminating costly misclassification battles and providing a massive boost to the gig economy. After passing the state legislature last week, Governor Rick Scott tweeted yesterday that he intends to sign the bill into law when he returns from a foreign trade trip. Once it takes effect on July 1, 2017, Florida will offer unmatched protections to sharing economy companies that do business in the state, hopefully spurring other states to follow its lead.
May Day has historically been a day marked by workers’ rights protests, with union organizing activities and other employee advocacy actions taking place across the country on what is now known as “International Workers’ Day.” Spurred on by recent “Day Without Immigrants,” “Day Without a Woman,” and “Tax Day” protests, however, this year’s version promises to be bigger than ever. Because your workers could take this opportunity to skip work or otherwise disrupt your operations, you should take the time to educate yourself about your legal obligations – and your rights – between now and next week.
Whenever the topic of sexual harassment reaches mainstream media outlets, people are bound to take notice. And when sexual harassment allegations involving a prominent public figure like Bill O’Reilly appear in the headlines of just about every major national and local media source, your employees are undoubtedly aware.
President Trump signed an executive order yesterday directing a full review of the H-1B visa program as part of a continued push to clamp down companies that hire foreign labor instead of American workers. The centerpiece of this directive – dubbed “Buy American, Hire American” – is a proposal to replace the H-1B lottery with a system that distributes visas on the basis of wages, skills, and education.
- Ruling In Favor Of Independent Contractor Status Provides Boost To Gig Economy4.13.17
A federal appeals court in New York handed a massive victory to a car service enterprise yesterday, ruling that a group of workers seeking to collect overtime payments were not actually employees and were properly characterized as independent contractors (Saleem v. Corporate Transportation Group, Ltd.). In issuing the ruling, the 2nd Circuit Court of Appeals provided what may superficially appear to provide a roadmap for technology businesses that digitally connect workers with consumers to understand, and avoid, misclassification risk.
The New York City Council passed legislation yesterday that will prohibit employers from making inquiries regarding salary history during the hiring process, a measure aimed at addressing gender-based wage gaps. Under the new law, it will be an unlawful discriminatory practice to ask about the salary history of a job applicant, or rely on the salary history of an applicant in determining compensation, during the hiring process.
- Groundbreaking Decision Could Lead Other Federal Courts To Follow Suit4.5.17
Late yesterday, the 7th Circuit Court of Appeals became the first federal court of appeals in the nation to rule that sexual orientation claims are actionable under Title VII. In a full panel en banc decision, the court opened the door for LGBT plaintiffs to use Title VII to seek relief for allegations of employment discrimination and retaliation.
Last week, North Carolina’s controversial “bathroom law” was repealed – but not without further controversy. When Governor Roy Cooper signed legislation repealing the law on March 29, 2017, many were upset that the law was repealed, while others were upset that the “repeal” did not go far enough.
It’s hard to keep up with all the recent changes to labor and employment law. While it always seems to evolve at a rapid pace, the last few months have seen an unprecedented number of changes. March 2017 was another month that saw an above-average number of 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 15 biggest stories from last month that all employers need to know about.
In a 7 to 1 decision, the U.S. Supreme Court ruled today that courts of appeals should largely defer to lower courts’ decisions when policing subpoenas issued by the Equal Employment Opportunity Commission (EEOC). By requiring that lower court rulings should be reviewed for abuse of discretion, rather than under a de novo review standard, the Supreme Court’s decision keeps a more sensible, reasonable limit on the EEOC’s investigatory powers, including the scope of requests for information in administrative subpoenas.
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.