Legal Alerts Archive
- Federal Contractors To Be Burdened With Additional Disclosure Requirements If Government Has Its Say6.9.15
The U.S. Labor Department (DOL) and three federal agencies (the Department of Defense, the General Services Administration and NASA) recently issued two proposed documents relating to the implementation of Executive Order 13673, better known as the Fair Pay and Safe Workplaces Executive Order. If enacted, these proposals would be problematic and burdensome for federal contractors; those who wish to have their voices heard on the matter have a July 27, 2015 deadline to submit comments on both documents.
In an 8–1 opinion authored by Justice Antonin Scalia, the U.S. Supreme Court held today that Abercrombie & Fitch Stores, Inc. is liable for refusing to hire an applicant who wore a hijab for religious reasons despite the fact that she never informed Abercrombie why she was wearing the headscarf. The decision increases the burden on employers to ensure they accommodate the religious beliefs of all applicants and employees. EEOC v. Abercrombie & Fitch
- Massachusetts Attorney General Offers "Safe Harbor" to Employers on Earned Sick Time, But Certain Conditions Apply6.1.15
On May 18, 2015, with just over six weeks until the earned sick time law is set to go into effect on July 1, 2015, the Massachusetts Attorney General’s Office announced that it would be creating a “safe harbor” provision for employers with existing paid time off policies. Under the safe harbor provision, an employer with a paid time off policy in existence as of May 1, 2015 will be deemed to be in compliance through December 31, 2015, provided that the paid time off policy meets certain requirements. Employers taking advantage of this safe harbor provision must be in full compliance with the law and the final regulations on January 1, 2016.
The U.S. Supreme Court has held unanimously that a plan fiduciary has a continuing duty to monitor investments offered under a 401(k) plan, a duty that is separate and apart from the duty to exercise prudence in selecting investments in the first place. The Court overturned a decision by the U.S. Court of Appeals for the 9th Circuit, which held that a claim for breach of fiduciary duty with respect to a fund selection was time barred unless made within six years of the date the fund was originally selected for inclusion in the plan. Tibble v. Edison International
On November 4, 2014, Massachusetts voters passed a ballot initiative requiring that all employees be entitled to earn and use up to 40 hours of earned sick time in a calendar year. There were significant ambiguities in the law (as discussed in our previous alert), but the law also enabled the Massachusetts Attorney General to “adopt rules and regulations necessary to carry out the purpose and provisions of this section.” On April 24, 2015, the Attorney General’s office published its proposed regulations implementing this law.
Today, the Supreme Court unanimously held that the Equal Employment Opportunity Commission’s statutory duty to conciliate to remedy a Title VII violation prior to filing a lawsuit on the violation is subject to some level of judicial review. Mach Mining v. EEOC.
Today, the U.S. Supreme Court ruled in a 6-3 decision that an employee should have her day in court to determine whether or not United Parcel Service, Inc. violated the Pregnancy Discrimination Act when it denied light-duty work to a pregnant employee who was restricted from heavy lifting by her medical provider.
- 9th Circuit Holds Service Advisors Non-Exempt Under FLSA Dealership "Salesman" Exemption; Section 7(i) Exemption Is Still Available3.25.15
The 9th Circuit U.S. Court of Appeals (with jurisdiction over the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has ruled in Navarro v. Encino Motorcars, LLC 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. It is the first court to have held this way.
Yesterday the National Labor Relations Board (NLRB) General Counsel issued a lengthy memorandum regarding his position on the recent developments in the context of employer handbook rules. Although lengthy at 30 pages, the GC’s memorandum, GC 15-04, is a must read for all employers – both union and nonunion.
Today, in a 9-0 decision, the U.S. Supreme Court abolished a precedent on which the regulated community has relied to keep federal agencies in check for nearly 20 years. This precedent, commonly referred to as the Paralyzed Veterans doctrine, required a federal agency to engage in notice-and-comment rulemaking before revising its definitive interpretation of a regulation. In its departure from the Paralyzed Veterans doctrine, the Supreme Court paved the way for even greater deference to federal agencies. According to the Court, the Paralyzed Veterans doctrine is contrary to the clear text of the Administrative Procedures Act’s rulemaking provisions and improperly imposes on agencies an obligation beyond the Administrative Procedures Act’s maximum procedural requirements. Perez v. Mortgage Bankers Association consolidated with Nickols v. Mortgage Bankers Association.
U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) will allow H-4 dependent spouses of certain H-1B nonimmigrants to apply for employment authorization.
Cook County recently increased the stakes on wage and hour compliance for employers that transact business with or receive tax incentives from the County. After May 1, 2015, Cook County may refuse to allow businesses to operate or do business with the County for up to five years, if the business has been found in violation of state or federal wage-payment laws, regardless of whether the employees lived or worked in the County.
The New Jersey Opportunity to Compete Act, better known as “Ban the Box,” will go into effect in less than a month, making this a great time for employers to review their employment applications and hiring procedures to ensure that they will be in compliance with the new law. The following Frequently Asked Questions will help employers get up to speed on the law’s requirements.
Today, in a unanimous decision, the U.S. Supreme Court held that courts must apply ordinary rules of contract interpretation when determining whether retiree healthcare benefits vest for life pursuant to the terms of a collective bargaining agreement. Writing for the Court, Justice Thomas wrote a scathing opinion overruling the 6th Circuit’s underlying decision, which had relied on UAW v. Yard-Man and its progeny to try to establish a presumption of lifetime vesting. M&G Polymers USA, LLC v. Tackett.
Today the U.S. Supreme Court held that an agent of the Transportation Security Administration (TSA) who disclosed information that was prohibited by TSA regulations, was nonetheless protected under the Whistleblower Protection Act. The Court’s reasoning centered around the fact that “regulations” are not “laws.” DHS v. MacLean.
With very little fanfare or media attention, Massachusetts Governor Patrick signed a bill into law the day before he left office that establishes parental leave in Massachusetts for both female and male employees. Effective April 7, 2015, the new law will replace the current Massachusetts Maternity Leave Act (MLA), which provides only female employees with eight weeks of job-protected maternity leave for the birth or adoption of a child. Extending parental leave to male employees will require significant policy changes for Massachusetts employers with less than 50 employees, as they are not already covered by the Family and Medical Leave Act (FMLA) which applies to both male and female employees.
Illinois has become the first state in the nation to enact a law requiring businesses to offer their employees a retirement savings plan. Signed into law recently by Gov. Pat Quinn, the new law, entitled “Illinois Secure Choice Savings Program,” is intended to encourage more retirement savings among workers who do not otherwise have access to retirement accounts through their employer. Although several other states have similar legislation pending, Illinois is the first state to pass such a provision.
As 2015 begins, the Occupational Safety and Health Administration (OSHA) is sharpening its emphasis on inspecting and citing employers who violate its recordkeeping standard. This takes on greater importance because of the changes and new reporting requirements that became effective on January 1, 2015.
After a January 1st increase of 15 cents per hour, Oregon’s minimum wage now stands at $9.25 – exactly two dollars per hour more than the federal minimum wage rate of $7.25 per hour. That places Oregon near the top of the list of 29 states with minimum wage rates higher than the federal rate. According to the National Conference of State Legislatures, only Washington and the District of Columbia have minimum wage rates higher than Oregon at $9.47 and $9.50 respectively.
The Colorado minimum wage increased by 23 cents to $8.23 per hour on January 1, 2015. Tipped employees are entitled to receive at least $5.21 per hour. These increases to Colorado’s minimum wage rates reflect the annual adjustment for inflation required by the Colorado Constitution.
On January 1, 2015, the Massachusetts minimum wage increased from $8.00 to $9.00 per hour. This is the first of three annual minimum wage rate hikes that Massachusetts employers will face due to legislation signed into law last June.
Beginning January 1, 2015, the minimum wage in New Jersey is $8.38 per hour, up from $8.25 per hour. This pay hike is the result of the November 2013 voter-approved state constitutional amendment that requires that New Jersey’s minimum wage be adjusted annually to reflect any percentage increase of the consumer price index for all urban wage earners and clerical workers (CPI-W) for the prior year. Because the CPI-W increased by 1.59 percent from August 2013 to August 2014, the state minimum wage for 2015 was raised by 1.59 percent, or thirteen cents per hour.
Last week, the National Labor Relations Board (NLRB or Board) revised its standard for determining when faculty members can unionize. Although the decision is expected to be appealed, it undoubtedly will open the door to a new wave of organizing efforts targeting private college and university faculties. Pacific Lutheran University.
On January 1, 2015, changes to Colorado’s employment anti-discrimination statute will go into effect, drastically impacting employers facing employment discrimination claims. The changes will significantly expand the remedies available under the statute, and will make it easier and more attractive for employees to file discrimination lawsuits in state court rather than alleging violations of federal law.
The National Labor Relations Board (NLRB) has finally implemented its long awaited “quickie election” rules, which will speed up union elections while requiring employers to turn over personal email addresses and telephone numbers. A substantially identical rule was issued by the Board three years ago, only to be struck down by a federal judge for lack of a voting quorum. With all five confirmed NLRB members voting, the 733-page final rule passed by a narrow margin along party lines. It seems that the holidays have come early for unions this year. Slated to take effect on April 14, 2015, the new procedures will have a profound impact on union organizing tactics and representation elections.
On January 1, 2015, the Arizona minimum wage will increase from $7.90 to $8.05 per hour.
In a much-anticipated decision, the National Labor Relations Board (NLRB or Board) ruled today that employees have the right to use their employer’s email system on nonworking time to engage in statutorily protected communications, such as discussing wages, hours, conditions of employment and even union organizing. The 3-2 decision overturns the Board’s 2007 Register Guard decision which held that employees have no statutory right to use their employer’s email system for Section 7 purposes. Purple Communications.
Today, the U.S. Supreme Court unanimously held that employees are not entitled to compensation for time spent waiting for and participating in mandatory security screenings at the end of their shifts. The decision reached by the Supreme Court is a victory for the increasing number of employers nationwide who screen employees to prevent theft. In addition, the Court provided much-needed guidance in an area of wage and hour law that has historically been the subject of litigation: when does the compensable workday begin and end? Integrity Staffing v. Busk.
On January 1, 2015, the minimum wage for employees working in Florida rises to $8.05 per hour. This represents an hourly increase of $0.12 over the current Florida minimum wage. The increase is tied to the rate of inflation over the prior year.
Last night, President Obama announced his plan for a partial fix of what many believe is a broken U.S. immigration system. This Executive Action will offer over four million undocumented individuals relief from deportation and provide them the opportunity to apply for temporary work authorization under what is being called Deferred Action for Parental Accountability (DAPA), expand the Deferred Action for Childhood Arrivals (DACA) program, strengthen border security measures, expand provisional waivers to include spouses and children of lawful permanent residents (LPR), and support high-skilled businesses and workers.
The San Francisco Board of Supervisors has voted unanimously to approve a city ordinance, which will create a number of obstacles for many businesses – including retail stores, restaurants, and banks. The ordinance, referred to as the “Retail Workers Bill of Rights,” will severely limit employers’ flexibility and discretion in hiring and allocating work hours among employees. In addition, employers will be penalized if they fail to meet the burdensome and intricate requirements established by the ordinance.
On January 1, 2015, the Missouri minimum wage will increase from $7.50 to $7.65 per hour and from $3.75 to $3.825 per hour for tipped employees. Compensation for tipped employees must total at least $7.65 per hour when tips are calculated. The Missouri minimum wage law governs Missouri businesses except retail and service businesses whose annual gross sales are less than $500,000.
On Tuesday, San Franciscans overwhelmingly voted to raise the City’s minimum wage to $15.00 over the next few years. The San Francisco current minimum wage of $10.74 is already higher than both the federal minimum wage of $7.25 and California’s minimum wage of $9.00. Under the new law, wages will rise to $11.05 on January 1, 2015, then to $12.25 in May 2015, before increasing every year until they reach $15.00 in 2018.
On November 4, 2014, Massachusetts voters passed a ballot measure to provide earned paid sick leave to employees. Effective July 1, 2015, employers with more than 10 employees will be required to allow all employees who work in Massachusetts to accrue and use up to 40 hours of paid sick leave per calendar year. Employers with 10 or fewer employees will be required to allow their employees to earn and use up to 40 hours of unpaid sick leave.
- Don't Fear The Reefer, Oregon Employers: Legalization of Recreational Marijuana Will Not Impact Company Policies11.5.14
On November 4, 2012, Oregon joined Colorado and Washington when voters approved a state initiative legalizing the recreational use of marijuana (Alaska passed a similar law the same day). As of July 1, 2015, it will no longer be illegal for adults over the age of 21 in Oregon to possess one ounce of marijuana in a public place and up to eight ounces in their home. The good news for employers: the new law does not change employers’ rights in any way, and your zero tolerance policies may still be enforced.
In a closely watched ruling, an Illinois federal district court handed a victory to one particular employer, but ducked a broader ruling that would have provided general guidance to companies generally that are trying to avoid litigation by entering into severance agreements with employees.
- OSHA Announces Final Rule On Recordkeeping Dramatically Increases Employers' Reporting Requirements Which OSHA Will Make Public9.18.14
On September 18, 2014, OSHA published its final rule for Occupational Injury and Illness Recording and Reporting Requirements. The rule, which takes effect on January 1, 2015, makes several important changes that significantly expands reporting requirements for all employers while publishing the employer provided information on the OSHA website.
On September 10, 2014, Gov. Jerry Brown signed into law the “Healthy Workplaces, Healthy Families Act of 2014.” This law will require California employers to grant employees, including some part-time and temporary employees, at least three paid sick days each year.
Massachusetts Governor Deval Patrick signed into law An Act Relative to Domestic Violence on August 8, 2014.This far-reaching law, which institutes reforms throughout the criminal justice system, mandates that all public and private employers with more than 50 employees must permit employees impacted by domestic violence to take up to 15 days of leave in any 12 month period. This leave may be paid or unpaid at the employer’s discretion. Employers are not required to grant leave if the employee is the perpetrator of abusive behavior against a family member. Employers are specifically required to notify employees of their rights and responsibilities under the law.
- New Jersey Bans the Box: Rules About Learning the Criminal Histories of Jobs Applicants Are Changing8.13.14
New Jersey employers with 15 or more employees will be prohibited from inquiring into a job applicant’s criminal history in the initial employment application beginning on March 1, 2015. New Jersey is the latest state to join a growing number of states that have enacted what is commonly referred to as “Ban the Box” bills.
Gov. Lincoln D. Chafee recently signed the 2014 Student and Employee Social Media Privacy Acts into law. In a press release, lawmakers said that the new law was modeled on similar laws in California that are “considered one of the nation’s strongest social-media privacy laws in the nation.”
On July 19, 2014, Illinois joined a growing number of states prohibiting employers from asking about applicants’ criminal histories early in the hiring process.
Yesterday President Obama issued an Executive Order extending antidiscrimination protection on the basis of sexual orientation and gender identity, as well as including these categories in affirmative action requirements. Regarding the federal contractor obligations, the Secretary of Labor will prepare regulations within 90 days, which will apply to contracts entered into on or after the effective date of the rules. Federal contractors or subcontractors holding contracts of $10,000 or more are subject to this Executive Order, a lower threshold than the $50,000 contract requirement for full affirmative action obligations. The additional antidiscrimination requirements are effective immediately for federal employees.
On July 14, 2014, the California Supreme Court clarified that an employer may not attribute commissions paid in one pay period to a prior pay period in order to satisfy California’s minimum-wage requirement or meet the inside-salesperson exemption. The Court’s decision will require employers throughout California to review their commission pay practices. Peabody v. Time Warner Cable, Inc.
- California Supreme Court: "Illegal Immigrant Shouldn't Have Been Hired – But Can't Be Fired Illegally"7.3.14
On June 26, 2014, the California Supreme Court decided that an employee may proceed with a discrimination lawsuit even though he presented false work authorization documents to obtain employment in the first place.
Today, a divided U.S. Supreme Court held in a 5-4 decision that closely-held for-profit corporations providing group healthcare to their employees could, on religious grounds, be exempted from providing contraception coverage to employees required under the Patient Protection & Affordable Care Act.
Today, in a 5 to 4 decision, the U.S. Supreme Court declined to extend its previous holdings regarding “fair-share” fees (fees that an employee who refuses to join a union is required to pay in lieu of union dues) to caretakers who are paid by the government to give home care to disabled individuals as part of a state program. According to the Court, in this setting, mandatory fair-share fees are unconstitutional. Harris v. Quinn.
Dealing the agency its second major setback on the legitimacy of its quorum, the Supreme Court has invalidated a trio of recess appointments made to the NLRB back in January of 2012. Moments ago, the Court handed down its landmark decision in NLRB v. Noel Canning, upholding a challenge to the agency’s authority to issue hundreds of decisions over the 18 months that followed the invalid appointments.
The Wage Protection Act of 2014, signed by Gov. John Hickenlooper on May 29, expands the state’s wage payment law to include additional types of claims, and grants the Colorado Division of Labor in the Department of Labor and Employment (CDLE) more authority and resources to pursue wage claims on behalf of employees. The law applies to nearly every private employer in Colorado who employs even a single employee.
Earlier this year, the Florida Legislature enacted a requirement for nonpublic colleges, universities and schools. Effective July 1, 2014, all such institutions are required to inform employees and students at orientation and on the school’s website of the existence of the Florida Department of Law Enforcement sexual-predator-registry website and the toll-free telephone number that gives access to sexual predator and sexual offender public information.