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.
- An Employer's Guide To Labor Secretary Nominee Alexander Acosta2.17.17
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 principal 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”).
Lost in the shuffle surrounding the United States Department of Labor’s (USDOL) proposed (but stalled) increases to the salary threshold for the “white collar exemptions” under the Fair Labor Standards Act (FLSA) was the New York State Department of Labor’s (NYSDOL) proposed increases to the salary threshold for administrative and executive employees under the New York Labor Law (NYLL).
Today, the California Supreme Court ruled that employers must provide their workers with duty-free rest breaks or face potentially devastating financial consequences. Most California employers know that state law generally requires you to provide meal and rest breaks to non-exempt employees during their work day, and failure to do so could result in being forced to pay an additional one hour of pay at the employee’s regular rate of pay. As today’s California Supreme Court decision in Augustus v. ABM Security Services, Inc. illustrates, failure to comply with these often onerous requirements can lead to overwhelming financial liability.
On December 14, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule establishing procedures and time frames for handling automotive industry employees’ whistleblower retaliation complaints under MAP-21 (the Moving Ahead for Progress in the 21st Century Act, 49 U.S.C. 30171). The final rule, which became effective immediately, is identical to the interim final rule that was published on March 16, 2016.
The U.S. Department of Labor (USDOL) has finalized a rule expanding nondiscrimination and affirmative action requirements in apprenticeship programs registered with the USDOL or state apprenticeship agencies. Program sponsors face staggered implementation of the rule’s provisions beginning in just a few short weeks – on January 18, 2017 – so the time to come into compliance is now.
While the federal minimum wage has remained steady at $7.25 for the past seven years, many state and local jurisdictions have set their own minimum rates higher than the federal level. And, of course, when a local jurisdiction mandates a rate higher than the federal rate, you must pay your employees the higher rate. Here is a listing of all the planned increases currently on tap for 2017.
Los Angeles just joined the ranks of other cities like San Francisco and New York City by enacting its own ban-the-box ordinance, prohibiting private employers from inquiring about criminal convictions during the application process. But not to be outdone by other cities, the Los Angeles Fair Chance Initiative for Hiring, Ordinance No. 184652, will be among the most restrictive in the country for private employers, taking it a few steps beyond the restrictions faced by other employers across the country. If you employ any workers in Los Angeles, you will want to get up to speed on this new law as soon as possible, as the effective date of the ordinance is just a few weeks away.
President-elect Donald Trump has announced that he would nominate Andrew Puzder to be the 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 Puzder’s selection 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?
New York City lawmakers have introduced a suite of legislation aimed at penalizing retail and fast food employers for making last-minute changes to employee schedules, while also providing protection for all New York City employees who request flexible work arrangements. The six bills, introduced to the City Council on December 6, 2016, strive to give retail and fast food employees more notice of and predictability in their schedules, while compensating them with extra pay for last-minute schedule changes.
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 seven biggest stories from last month that all employers need to know about.
As 2016 winds down, we are entering into the prime season for holiday gatherings. Based on a recent study by the Society for Human Resource Management, approximately 65% of employers plan to host a holiday or end-of-year party. Although these parties can be a lot of fun, they can be hotbeds for potential employer liability. So, what can you do to reduce the potential for mishaps?
- Although Rule Can Still Be Challenged, December 1 Effective Date Is On Track11.30.16
On November 28, a Texas federal court judge issued a ruling that cleared the way for the whistleblower provisions of the new Occupational Safety and Health Administration (OSHA) Recordkeeping Rule to take effect as scheduled. While the ruling permits OSHA’s whistleblower requirements to take effect on December 1, 2016, the court’s decision does not determine whether OSHA’s controversial interpretations of this rule will ultimately be upheld in the long run, or whether the Trump administration will follow these interpretations.
Employers are returning from their Thanksgiving holiday weekend grappling with thorny questions following last week’s surprising and momentous court decision preliminarily blocking the Department of Labor’s overtime rule from taking effect. Here are some answers to your most pressing questions from our firm’s thought leaders on the subject.
- Rules Will Not Take Effect On December 1; Future Thereafter Uncertain11.22.16
In a dramatic last-minute development, a federal judge in Texas today blocked the U.S. Department of Labor’s (USDOL’s) overtime rule from taking effect on December 1, handing an eleventh-hour victory to employers across the country. Agreeing with arguments posed by concerned states and business groups, the judge issued a preliminary injunction preventing the rules from being implemented on a nationwide basis.