Legal Alerts Archive
In a unanimous opinion, a federal appeals court just rejected the National Labor Relations Board’s “subgroup majority status rule” for determining when college and university faculty members are to be deemed managers and therefore excluded from coverage under the National Labor Relations Act (University of Southern California v. NLRB). The rule, first articulated in the Board’s 2014 Pacific Lutheran decision, required that a faculty subgroup (e.g. nontenure faculty) seeking to organize must have majority control of any committee that made managerial decisions before the Board would find that subgroup to be managers.
We have waited years to see where the U.S. Department of Labor would land with its much anticipated revised “overtime rule”—late yesterday, the agency delivered. The USDOL released its long-awaited proposed rule which, if adopted, would set the minimum salary threshold at $679 per week, annualizing to $35,308 per year. For now, the proposed rule does not include an automatic update provision (which many were concerned would simply serve to periodically inflate the threshold level), nor does it revise the duties test that accompanies the rule.
A federal judge in Washington D.C. sent shockwaves through the employment law community late last night by reinstating a revised version of the EEO-1 report, which is now once again set to gather compensation information from employers across the country. The resurrection of the controversial revisions, which had been cast aside by the White House shortly after President Trump took over, will almost certainly be challenged by an appeal and could also lead to further agency maneuverings. While we have not yet seen the final chapter of this controversy written, employers need to prepare for the possibility that their pay practices will soon be placed under a federal microscope like never before.
The National Labor Relations Board just decided that private sector unions cannot use fees paid by nonmembers to fund their lobbying efforts. Especially when coupled with last year’s momentous Janus decision at the U.S. Supreme Court, Friday’s decision in United Nurses & Allied Professionals (Kent Hospital) could further impact the effectiveness of union lobbying activities. What do employers need to know about the latest decision from the Labor Board?
A New York federal court recently reinforced the limited geographic scope of the New York City Human Rights Law, a city law which provides broader anti-discrimination and anti-retaliation protections to employees than the New York State Human Rights Law and federal anti-discrimination laws. Courts have long held that New York City Human Rights Law (NYCHRL) claims are limited to those claims where the alleged discriminatory conduct had a “discriminatory impact” within New York City. The Eastern District of New York federal court reaffirmed this principle in response to a plaintiff who attempted to stretch the jurisdictional bounds of the NYCHRL to encompass a claim where the alleged discriminatory conduct occurred far from the five boroughs of New York City (Amaya v. Ballyshear LLC).
- Landmark 9th Circuit Ruling Scrapped Because Of Deceased Judge2.25.19
The Supreme Court took the unusual step today of vacating a 2018 federal appeals court decision because one of the judges counted in the majority was deceased by the time the decision was published, reversing a landmark pay equity ruling that concluded employers could not justify wage differentials between men and women by relying on prior salary. Although the justices did not examine the merits of the 9th Circuit’s Yovino v. Rizo ruling in today’s unsigned five-page opinion, their decision plunges employers back into a state of uncertainty regarding a controversial pay equity practice.
New Jersey’s governor just approved a significant expansion of the state’s leave laws, permitting employees job-protected leave for a variety of new reasons while expanding available state-provided, income-replacement benefits. The February 19 action by Governor Phil Murphy expands existing job-protected leave under the Family Leave and SAFE Acts, and available benefits under Family Leave Insurance.
Illinois is set to drastically change its minimum wage in the near future, reaching $15 per hour over the course of the next six years. Following passage by the legislature on February 14, 2019, newly elected Governor J.B. Pritzker quickly signed the amendments to the Illinois Minimum Wage Law into law. You should be prepared for the gradual increases (and other changes) to start taking effect on January 1, 2020.
A Kentucky legislative leader has just taken the first step to try to resurrect the ability of employers to require employment disputes to be resolved by arbitration. Kentucky Senate President Robert Stivers has just introduced legislation (Senate Bill 7) to make clear that employers and employees may agree to arbitrate claims related to the employment.
A federal appeals court just announced a sweeping change for agricultural employers that will make it easier for workers to bring discrimination claims against them under a joint employment theory. In last week’s EEOC v. Global Horizons, Inc. decision, the 9th Circuit Court of Appeals held that employers who use labor contractors to recruit H-2A workers can be liable under Title VII as a joint employer for non-workplace matters—such as claims for housing, meals, and transportation—even if such matters are contractually delegated to a labor contractor.
A California Court of Appeal just announced a sweeping change in California’s reporting time pay rules which now prohibits a common scheduling practice used by employers throughout the state (Ward v. Tilly’s, Inc.). Yesterday’s decision means that California employers who require employees to call in two hours before a shift to determine whether or not they are needed, and report to work if called in, are now obligated to pay that employee, at a minimum, for two hours of work even if the employee is informed that there is no need to come in to work that day. Unfortunately, the case left many questions unanswered and, as a result, you should be careful to craft scheduling policies that avoid the same pitfalls seen in that case.
New Jersey has joined the ranks of California, New York, Massachusetts, and Washington D.C. in adopting legislation that will gradually increase the state’s minimum wage to $15 an hour for most employees. The legislature passed the bill on January 31, and Governor Phil Murphy signed it into law yesterday. Here’s what New Jersey employers should know about it.
- Fisher Phillips Attorneys Represented Business Interests in Important Matter2.5.19
The Florida Supreme Court on Tuesday blocked a Miami Beach law that would have raised the minimum wage in the city. This ends a lengthy legal battle over whether cities could set their own minimum wages that do not correspond with what has been set by the Florida Constitution.
- A 5-Step Plan To Successfully Navigate This Year’s Lottery2.5.19
The federal government just published its final rule amending the regulations that will govern petitions filed under the H-1B work visa lottery. Although the final rule is effective April 1, 2019, the Department of Homeland Security (DHS) has announced it will suspend the electronic registration requirement for employers for this year’s H-1B cap. This will allow U.S. Citizenship and Immigration Services (USCIS) sufficient time to complete the necessary user testing and ensure the system and process are fully functional before they are implemented. If you are unsure how to respond to the announced changes, read on to find our five-step plan to success.
Employers received a bit of good news today as the federal government announced the deadline for submitting their EEO-1 reports has been extended until May 31. Although originally due in just a few short weeks—on March 31—the Equal Employment Opportunity Commission (EEOC) announced the extension today in a brief news release, providing a measure of breathing room for employers across the country.
In one of his last acts in office, former Governor Rick Snyder signed Michigan’s Paid Medical Leave Act into law, which will for the first time require employers in the state to provide paid sick leave to their workforces. Although the statute was just signed on December 14, the effective date of the new law is right around the corner: March 29, 2019. What do employers need to know about this significant development?
The Illinois Supreme Court today made it far easier for workers to bring suit against their employers for technical violations of the state’s biometric information privacy statute, putting employers on notice that they must immediately improve their biometric practices in order to avoid the same fate. The long-awaited decision in Rosenbach v. Six Flags Entertainment Corporation means that any time an employer violates the technical aspects of the state statute—even if no specific injury or adverse effect results—their employees have standing to sue them for violations under the Illinois Biometric Information Privacy Act. Illinois employers that utilize biometric information must now be hyper-cautious with regard to the collection, maintenance, transmission, and destruction of this data.
In a significant ruling which will benefit companies, the National Labor Relations Board today revised the test it uses for determining whether workers are employees or independent contractors by making it easier for entities to classify them as contractors (SuperShuttle DFW, Inc.). The decision throws a roadblock into unionization efforts involving such workers, as federal law does not permit independent contractors to unionize or join forces with employees in organizing efforts. What do employers need to know about this development?
Ohio recently amended its definition of “employer” in order to limit the joint employer status of franchisors.
The matchup is now set: the Los Angeles Rams will be playing the New England Patriots in Super Bowl LIII, and no doubt your employees are very much aware of the upcoming game. A good many of them will be among the estimated 110 million television viewers who will be watching, whether they are passionate fans, more interested in the halftime show, or just there for the commercials.
New Jersey is likely to follow California, Massachusetts, and New York in gradually raising its minimum wage to $15 an hour. Senate President Steve Sweeney and Assembly Speaker Craig Coughlin agreed on a proposal with Governor Phil Murphy last week, which could see the increase passed into law around the end of the month, soon after full Senate and Assembly sessions are scheduled to convene. What do New Jersey employers need to know about this proposal?
In a 3-1 ruling that should be hailed by employers across the country, the National Labor Relations Board just made it harder for employees to successfully claim that their workplace gripes constitute protected concerted activity. The January 11 decision (Alstate Maintenance, LLC) reverses a 2011 Obama-era decision that was widely derided as tilting the playing field too far in favor of employees. Under that precedent, essentially any employee complaint made to management in the presence of coworkers was sufficient to qualify as protected concerted activity under the National Labor Relations Act (NLRA). Under Alstate Maintenance, however, the NLRB has returned to the more stringent standard whereby only those complaints that seek to initiate group action, or that involve truly “group” complaints, will be considered protected concerted activity.
The New Year has brought long-awaited and historic change to the legal rights of the LBGTQ community in the Empire State. On January 15, the State Assembly and State Senate voted to pass the Gender Expression Non-Discrimination Act (GENDA). The statute, which had languished in the New York State legislature for the past 16 years, will protect transgender individuals from discrimination. Governor Andrew Cuomo applauded the legislation and has pledged to sign GENDA into law.
In a unanimous 8-0 decision, the Supreme Court ruled today that federal courts can’t force interstate transportation workers—including contractors—into arbitration, ruling that the Federal Arbitration Act’s Section 1 exemption for these workers is a threshold question for the court to resolve, not the arbitrator. Perhaps more importantly, the Court also applied the Section 1 “contract of employment” exemption from the FAA to include not only interstate transportation workers with employment agreements, but also to those interstate transportation workers with independent contractor agreements (New Prime Inc. v. Oliveira).
As of Saturday, the current federal government shutdown became the longest in our nation’s history—and employers are starting to feel the sting. While the peculiarities of the federal budget process meant that this shutdown started out by not hitting the nation’s employers as hard as prior shutdown events, the lingering nature of the event has started to take its toll, and things could get much more difficult in just a few short days. Read on to get a better understanding of how employers are being impacted and what to expect in the coming days (or weeks).
New York City has once again shown its intent to be a national leader in implementing robust worker protections. Mayor Bill de Blasio yesterday called for New York City to pass legislation mandating paid personal time for employees working in the city. If implemented, New York City would be the first jurisdiction in the country to mandate paid personal time for employees.
In a unanimous opinion issued today, the United States Supreme Court continued its expansive reading of the Federal Arbitration Act and arbitration provisions, rebuffing an effort by some to erect an additional hurdle that would interfere with an employers’ ability to enforce arbitration agreements (Henry Schein Inc. v. Archer and White Sales Inc.). By rejecting the “wholly groundless” exception that courts had used to “spot-check” whether a claim of arbitrability was plausible before compelling arbitration, all lower federal courts must now compel arbitration in all cases where the parties have agreed to delegate the issue of “who decides what is arbitrable” to an arbitrator.
Texas has maintained its reputation as being a conservative state despite the results of the 2018 midterm elections. But, as the surprisingly close Texas Senate election suggests, things may be a-changin’—especially when it comes to legalizing marijuana use on a medical or recreational basis. While Texas may not be a “blue” state—or even a purple one—voters’ electoral preferences and state legislators’ priorities suggest things might be loosening up a bit in the Lone Star State with regard to marijuana use. What does this mean for Texas workplaces in 2019?
The new year brings new employee reimbursement obligations for Illinois employers. Effective January 1, 2019, the Illinois Wage Payment and Collection Act requires employers to reimburse employees for all necessary expenditures or losses incurred within the employee’s scope of employment and directly related to services performed for the employer. The Act defines “necessary expenditures” as all reasonable expenditures or losses required of the employee in the discharge of employment duties and that inure to the primary benefit of the employer.
With one final jolt to end the year, a federal appeals court ruled today that the impractical joint employer test originally adopted by the Obama-era National Labor Relations Board in 2015 was properly enacted and therefore remains in effect (Browning-Ferris Industries v. NLRB). This doesn’t change much for employers’ day-to-day operations, as the Trump Labor Board’s efforts to overturn the controversial standard ran into a roadblock in early 2018 and the standard has effectively been in place for the better part of three years now.
Because Congress and the president could not approve a stopgap funding bill by midnight on December 21, the federal government partially shut down, with no compromise in sight. What will this mean for employers across the country? Because of the peculiarities of the federal budget process, this shutdown has not hit the nation’s employers as hard as prior shutdown events. Read on to get a better understanding of which federal agencies are impacted and what to expect in the coming days (or weeks).
In its final session of the year, the New York City Council voted to prohibit employment discrimination based on an individual’s reproductive health choices. On December 20, the Council approved an amendment to the New York City Human Rights Law (NYCHRL) which will add “sexual and reproductive health decisions” to the list of protected classes under the law. The amendment was introduced to in response to the federal government’s efforts to curtail reproductive healthcare access.
As 2018 comes to a close, 2019 will bring new changes to the employment law landscape in New York City and the state of New York. New York employers should be cognizant of these impending new laws, as well as laws that went into effect in 2018, in order to ensure compliance with changing obligations.
The New York State Department of Labor recently issued proposed regulations seeking to curb on-call scheduling, “call-in” shifts, and last-minute shift changes. The proposed regulations endeavor to provide employees with more predictable schedules, or compensate them for last-minute schedule changes. If implemented, the regulations will severely impact scheduling practices of New York employers. What do you need to know about these proposals?
The Department of Homeland Security (DHS) recently proposed a new rule that could dramatically change the way the H-1B application process works. The rule would establish an electronic pre-registration system and run the annual lottery based on the pre-registrations rather than requiring employers to file entire H-1B applications. The DHS is also considering changing the way it conducts the lottery to improve the odds of those with graduate degrees from U.S. universities. While U.S. Citizenship and Immigration Services (USCIS) is providing 30 days for public comment, the agency is attempting to fast-track the process to have the system in place for the upcoming H-1B application period, which is set to begin in April 2019.
A Texas federal judge dealt a serious blow to the Affordable Care Act (ACA) late Friday afternoon, ruling that the tax reform law passed by Congress in late 2017 rendered the healthcare law unconstitutional. While U.S. District Court Judge Reed O’Connor’s 55-page opinion overturns the entirety of the law on a national basis, his ruling does not include any sort of injunction that would immediately cause employers to alter their practices with respect to benefit administration. The law remains in place for the foreseeable future, but it certainly stands on shakier ground today than it did just a few days ago.
Employers are about to enter into limbo when it comes to maintaining wellness programs, and you will soon need to make a decision about how you will implement any such programs at your workplace. As of January 1, 2019, the federal rules that had been put into place to govern wellness program incentives will be officially invalid, meaning that you will be somewhat in the wilderness when it comes to creating and enforcing a voluntary wellness program. Here’s a quick summary of how we got to this point, and three options for you to consider in light of the impending absence of rules.
Washington employers, get ready. Starting January 1, 2019, the state’s Employment Security Department (ESD) will begin collecting premium payments from employers so the historic Paid Family and Medical Leave (PFML) program can be implemented. While the benefits will not be able to be accessed by workers until 2020, don’t be fooled into thinking that you still have another year to prepare for this new law; you need to begin your preparations now. What do Washington employers need to know to get ready?
Weeks before the bulk of Oregon’s new equal pay law will take effect, the state Bureau of Labor and Industries released implementing regulations to clarify the obligations that will soon be borne by the state’s employers. Employers with operations in Oregon will want to review and familiarize themselves with these regulations before the January 1 effective date. Here are the five things you need to know about the new rules, along with a list of five action items for you to consider in advance of the new year
In an important decision for employers in the healthcare industry, the California Supreme Court just approved the Industrial Welfare Commission’s long-standing exemption for health care workers in relation to second meal period waivers. The Gerard v. Orange Coast Memorial Medical Center case, released earlier today, had already been the subject of another decision from the California Supreme Court, and the California legislature even passed legislation in the middle of the case directly affecting the court’s decisions—which means this decision was a long timing coming for the California healthcare community.
Massachusetts legislators have taken steps to immediately enhance the Commonwealth’s unemployment compensation regime for locked-out employees of gas and electric companies. In light of the 6-month standoff at National Grid, the gas and electric utility that serves much of Massachusetts, the House of Representatives just passed a bill that would extend an employee’s unemployment eligibility indefinitely for the duration of any lockout, with their employer footing 100 percent of the cost. Where do we expect this legislation to go from here, and what do Massachusetts employers need to know about this development?
It’s hard to keep up with all the recent changes to labor and employment law. While the law always seems to evolve at a rapid pace, there have been an unprecedented number of changes for the past few years—and this past month was no exception.
This year’s Cyber Monday—the first work day back after the Thanksgiving break—is once again expected to be the largest online shopping day in history. Last year, 81 million American consumers spent over $6.5 billion on digital transactions on Cyber Monday, easily the busiest online shopping day of the year, and an increase of close to 17 percent from the previous year. And it’s starting to even edge out Black Friday in popularity—it was reported that 71 percent of consumers said they planned on shopping on last year’s Cyber Monday, while only 69 percent said they planned to do so on the day after Thanksgiving.
As the ramp-up towards Massachusetts’ paid family and medical leave continues, the newly created Department of Family and Medical Leave (DFML) just launched its website and issued its first guidance documents. As discussed previously, the July 1, 2019 date for starting contributions looms in the not-too-distant distance, while benefits under the paid leave programs will begin in January 2021. What do employers need to know about this development?
A bitterly divided state Supreme Court upheld Kentucky’s right-to-work law by a 4-3 vote yesterday, cementing Kentucky’s status as one of 27 states in the country to have such a law on the books. Although the law was originally signed in January 2017 and immediately took effect, unions in Kentucky resisted accepting the reality of right-to-work and were banking on this litigation to overturn law. Now that the legal challenges have been denied, employers should ensure they are familiar with right-to-work, as the law could have an impact on your workplace.
In a case of first impression, a federal appeals court just found that an applicant’s request for a religious accommodation did not constitute protected activity under Title VII for the purpose of establishing a retaliation claim. Under the 8th Circuit’s November 13 ruling, the appropriate avenue to challenge an employer’s denial of a religious accommodation request under Title VII is by filing a disparate treatment claim, not through a retaliation cause of action. What can employers take from the EEOC v. North Memorial Health Care decision?
Missouri voters approved Amendment 2 on Election Day 2018, one of the three medical marijuana measures appearing on the state’s ballot. Amendment 2 adds an article to the Missouri Constitution legalizing medical use of marijuana for qualifying patients and allowing people who qualify to grow their own plants. With a new law comes new questions about how this development will affect workplaces across the state. Here are a series of the most common questions Missouri employers may have while adjusting to this new reality.
As predicted, Missouri voters turned out in record numbers for the 2018 general election yesterday and overwhelmingly voted to pass Proposition B: The $12 Minimum Wage Initiative. As a result, beginning January 1, 2019, the hourly minimum wage in Missouri will increase from $7.85 to $8.60, and will gradually increase by 85 cents per year until it reaches $12.00 per hour in 2023.
As many predicted, Democrats recaptured the House for the first time in eight years in yesterday’s midterm elections, while Republicans retained and strengthened their grip on the Senate. That will lead to a dynamic in Washington, D.C. that the Trump administration has yet to face: a fractured legislature and a tug-of-war at the federal level. What does this development mean for employers? Here are the top 10 things to expect in the labor and employment law arena given the results in yesterday’s historic elections.
- Is This A Prelude To Individual Liability?11.6.18
In a unanimous 8-0 decision, the United States Supreme Court issued its first ruling of the new term today and delivered a blow to small public-sector employers fending off age discrimination lawsuits.