Legal Alerts Archive
Alabama has become the most recent state to adopt a “bring your gun to work law,” with Governor Robert Bentley signing a firearms-related bill into law on May 22, 2013. The law takes effect August 1, 2013. The law will impact Alabama employers and companies with operations in that state.
The National Labor Relations Board suffered another significant blow this week, when the U.S. Circuit Court of Appeals for the District of Columbia struck down the Board’s controversial notice-posting mandate on the basis that it infringed upon employer free speech rights, while otherwise violating the National Labor Relations Act (NLRA). The posting requirement, which was scheduled to take effect back on April 30 of 2012, was invalidated in its entirety. Nat’l. Assn. of Manufacturers v. NLRB.
On May 2, 2013 Gov. John Kasich proposed a workers’ compensation rebate for Ohio’s 210,000 public and private employers. The rebate could amount to as much as $1 billion. The announcement was made at a press conference at Homage, a small business in the Short North neighborhood of Columbus.
- Supreme Court Rules Dismissal Of FLSA Collective Actions Are Appropriate When Individual Claim Is Rendered Moot4.16.13
Today the U.S. Supreme Court upheld the concept that a wage and hour collective action brought pursuant to the Fair Labor Standards Act (FLSA), can be dismissed for lack of subject matter jurisdiction when the named plaintiff’s claim is rendered moot – in this case by virtue of the plaintiff being offered complete relief through an offer of judgment made pursuant to Rule 68 of the Federal Rules of Civil Procedure. Genesis HealthCare Corp. v. Symczyk.
Today the U.S. Supreme Court rendered a pivotal decision, holding that as a prerequisite for certification of a class action, a plaintiff must introduce admissible evidence to show that the case is susceptible to awarding damages on a class-wide basis. This ruling has been much anticipated and will significantly impact the future of employment-related class action lawsuits nationwide. Comcast v. Behrend
U.S. Citizenship and Immigration Services (“USCIS”) announced today the release of the new I-9 Employment Eligibility Verification Form. All employers are required to use the new I-9 immediately to verify the identity and employment authorization eligibility of their employees. Although USCIS requires employers to use the new Form I-9 beginning today, USCIS has provided a 60-day grace period for employers to continue to use the current version of the form issued 08/07/09 (the 02/02/09 version is also still valid) until May 7, 2013. Failure of an employer to ensure proper completion and retention of Forms I-9 may subject the employer to civil money penalties of up to $1,100 per I-9, and, in some cases, criminal penalties. Although the new two-page Form I-9 mainly contains format changes, additional data fields, and further instructions to the employer, it increases the administrative burden placed on employers.
In an unpublished decision, the California 2nd District Court of Appeal held that that piece-rate-paid employees are entitled to separate hourly pay for “waiting” time. The case involved a class of 108 automobile service technicians who worked for Downtown LA Motors, LP (DTLA), a Mercedes-Benz dealership. Gonzalez v. downtown LA Motors, LP.
- Be Ready To Defend Your Compensation Decisions3.1.13
The Office of Federal Contract Compliance Programs (OFCCP), the U.S. Department of Labor agency that enforces federal contractor affirmative action requirements, has significantly expanded its investigative tactics for compensation discrimination. This will have a significant effect on federal contractors whose compensation decisions are challenged.
On Monday, April 1, 2013 U.S. Citizenship and Immigration Services (USCIS) will begin accepting FY 2014 H-1B cap-subject petitions for employment starting on October 1, 2013.
Mid-morning on Friday, January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued a long-awaited ruling refusing to enforce the National Labor Relations Board’s bargaining order against a petitioning employer. The basis for the court’s decision was the improper appointment of three members of the NLRB. Noel Canning v. NLRB
After a long bench trial which began on August 20, 2012, Judge Richard McMonagle recently issued his decision in an important class-action lawsuit. The suit was brought on behalf of certain employers doing business in Ohio, and alleged that the Bureau of Workers’ Compensation (BWC) charged excessive workers’ compensation premium rates to employers who were not able to participate in Ohio’s group rating program (referred to as “non-group rated”).
In 2012, OSHA expanded its focus and increased the number of citations involving its recordkeeping standard.
On December 10, 2012, the Supreme Court handed down a critical victory to federal employees in a highly technical case. This decision now gives federal employees a simpler and less confusing process for appealing discrimination cases that have been dismissed by the Merits Systems Protection Board (MSPB). Federal appellate courts previously were divided on which court should handle cases that were dismissed by the MSPB on procedural grounds. This Supreme Court decision gave a final answer to that question. Kloeckner v. Solis
On January 1, 2013, the minimum wage for employees working in Washington will increase to $9.19 per hour. On the same day, the minimum wage for employees working in Oregon will rise to $8.95 per hour. With these increases, Washington and Oregon will remain the states with the two highest minimum wage rates in the entire country. What do employers need to know about this change, aside from increasing their payroll accordingly?
There has long been a requirement for California employers, and out-of-state employers with employees in California, to report the hiring of new employees working in California to the California Employment Development Department’s (EDD) New Employee registry. These reporting requirements were designed to assist the state in locating parents who are delinquent in their child support payments and to assist in the early detection and recovery of Unemployment Insurance benefit overpayments.
Beginning January 1, 2013, a new California law requires that employees who are paid on commission must be provided a written contract which sets forth the method by which the commission shall be computed and paid. This new law further requires that the employer provide a signed copy of the commission agreement to the employee and obtain a signed receipt for it.
The Michigan legislature voted Tuesday to pass controversial right-to-work legislation affecting private and public sector employees throughout the historically union-friendly state. The legislation, which was signed almost immediately into law by Governor Rick Snyder, is a striking blow to Michigan’s organized labor movement, particularly in the automotive industry. The new laws are expected to take effect as soon as April 2013.
The new healthcare reform law includes a number of new taxes and fees which are rarely mentioned by the law’s supporters. On December 5, IRS announced final regulations governing new fees on health insurers and employer sponsors of self-insured health plans, designed to fund the “Patient-Centered Outcomes Research Trust.” This Trust finances an “Institute” tasked with “advancing the quality and relevance of evidence-based medicine through the synthesis and dissemination of comparative clinical effectiveness research findings.” Got that?
On November 6, 2012, Washington became a national trailblazer when voters approved a state initiative legalizing the recreational use of marijuana (Colorado passed a similar law the same day). As of December 6, 2012, it will no longer be illegal for adults over the age of 21 to possess one ounce of marijuana. The good news for employers: the new law does not change employers’ rights in any way, and zero tolerance policies may still be enforced.
On September 1, 2012, Seattle's paid sick and safe-leave ordinance went into effect. The ordinance will require nearly all private-sector employers to provide employees who work in Seattle with specified amounts of accrued paid sick and safe time (PSST). Sick leave is, of course, self explanatory. "Safe leave" refers to time off related to domestic violence, sexual assault, or stalking.
On January 1, 2013, the minimum wage for employees working in Florida will rise to $7.79 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.
With the presidential election coming on November 6, employers will be faced with employees wanting to take time to vote. Although most states have laws that afford employees the right to take time off from work in order to vote, these laws vary substantially from one state to the next.
Remember, your Tennessee employees are entitled to take a reasonable period of time off to vote on election day. Tennessee law provides that they may take up to three hours, paid, if the work schedule does not permit them time to vote before or after work.
- California Joins Maryland and Illinois in Restricting Employers' Access To Employees' "Social Media"10.1.12
On September 27, 2012, California Governor Jerry Brown signed into law Assembly Bill 1844, which prohibits employers from requiring or requesting an employee or applicant for employment to: (1) disclose a username or password for personal social media, (2) access their accounts in the presence of employers, or (3) divulge any personal social media. It also makes it illegal to discipline or retaliate against an employee or applicant for not complying with a request or demand for access to personal social media.
On March 22, 2012, Illinois legislature passed an amendment to the Illinois Right to Privacy in the Workplace Act. This bill was signed today by Gov. Pat Quinn, and takes effect January 1, 2013. This makes Illinois only the second state (Maryland was the first) to ban employers from requiring access to employee and applicant social networking sites.
- Nearly all State Contractors and Sub-Contractors Affected7.16.12
The Public Works Employment Verification Act, signed into law on July 5, 2012, requires all contractors and subcontractors on public-works projects with the State of Pennsylvania (regardless of tier but excluding material suppliers) to use E-Verify for all newly hired employees. The new requirement takes effect on January 1, 2013.
Today the U.S. Supreme Court issued its long-awaited decision on the Patient Protection and Affordable Care Act (ACA). In what is easily the most significant decision this term, and arguably one of the most important rulings in decades, the Supreme Court upheld the so-called "individual mandate" and all of the provisions of ACA that impact employers. NFIB v. Kathleen Sibelius, Secretary of Health and Human Services.
Today, the Supreme Court held that certain provisions of Arizona's immigration statute (signed into law in 2010) were preempted by federal immigration law. The preempted provisions include those making it a criminal offense for an undocumented worker to solicit, apply for, or perform work in the state; making it a misdemeanor for an individual to fail to comply with federal alien-registration requirements; and authorizing state and local officers to arrest persons who the officer has probable cause to believe has committed a public offense making the person removable from the United States.
Today the U.S. Supreme Court handed a victory to employees who choose not to join a union, but who are nevertheless required to pay a fee to the union. Unions are already required to provide a notice to such employees spelling out the specific uses the fees will be put to, and allowing the employee to opt out of paying some of them.
Last Friday, Secretary of Homeland Security Janet Napolitano announced that, effective immediately, young people who were brought to the United States as children through no fault of their own will be considered for relief from deportation, known as "deferred action."
In an important wage-hour decision with potential relevance beyond the pharmaceutical industry, the Supreme Court held today that pharmaceutical sales reps at GlaxoSmithKline (GSK) were exempt from overtime pay under the Fair Labor Standards Act's exemption for "outside salesmen," resolving a split among the courts.
Representing a victory for the federal government, the U. S. Supreme Court held today that federal employees do not have a right to challenge their terminations from employment in federal district court on constitutional grounds. The ruling reinforces the statutory scheme of the Civil Service Reform Act, which establishes the Merit Systems Protections Board (MSPB), an administrative agency governing federal employment disputes. Elgin v. Dept. of Treasury
Massachusetts employers take note: Massachusetts' Transgender Equal Rights Bill, signed into law by Governor Patrick on November 23, 2011, goes into effect on July 1, 2012. Massachusetts is the 16th U.S. state, along with Washington, D.C., to offer transgendered individuals protection from discrimination, although the Massachusetts Commission Against Discrimination has taken the position for years that transgendered individuals are protected under the definition of "sex" as a protected class.
On May 14, 2012, the U.S. Chamber of Commerce and the Coalition for a Democratic Workforce dealt yet another blow to the National Labor Relations Board, securing summary judgment in their challenge of the NLRB's expedited-election rule. In striking down the rule, the U.S. District Court for the District of Columbia declined to rule on the merits of the case, choosing instead to focus upon the absence of a lawful quorum at the time of the rule's passage.
A recent decision by New Jersey's Appellate Court substantially broadens the scope of the state's Law Against Discrimination (LAD) to permit any employee who is subjected to any discriminatory comments, even if the comments do not relate to that individual's actual protected characteristics, to assert a hostile work environment claim.
For several years, we have encouraged employers to move away from safety-management programs which primarily track the program's effectiveness based upon recordable injuries, and which utilize monetary-incentive programs based on the number of recordable workplace injuries. Our principal reason for discouraging such programs is that recordable incidents focus on "lagging" indicators, may not identify causes, and may be affected by the capriciousness of timing and "bad luck." But employers now have another reason to increasingly shift away from programs primarily driven by recordables. Even before the current Administration took office, its leaders questioned the accuracy of employer recordkeeping and asserted that employees underreport workplace injuries in order to participate in safety incentive programs, or as a result of pressure imposed upon them by employers.
On April 28, 2012, a federal judge with the U.S. District Court for the District of Columbia cleared the way for the National Labor Relations Board's expedited-election rule. It is effective today, Monday, April 30th.
Yesterday, the EEOC voted 4-1 to adopt new guidance regarding employer use of criminal background checks to screen applicants and current employees. This guidance will affect nearly every employer in the country.
- Supreme Court: Temporary Government Employee Is Entitled To Same Immunity From Lawsuits As Full-Time Public Workers4.17.12
In a unanimous decision, the U.S. Supreme Court ruled today that a private employee working for a governmental body is entitled to the same qualified immunity as full-time public employees. Filarsky v. Delia.
For months now, the business community has been bracing for the implementation of two key pro-labor initiatives on April 30, courtesy of the National Labor Relations Board: 1) an expedited election rule designed to cut the period between petition and election in half; and 2) a first-ever mandatory-posting requirement that would educate employees as to their representation rights, while laying the groundwork for unfair labor practice charges and extended limitations periods against those employers who fail to comply. The first initiative is proceeding on course, despite ongoing challenges that will ultimately be played out before the courts.
The U.S. Chemical Safety Board (CSB) announced that it has developed a new policy on employee participation in investigations. The Board hopes to greatly expand the role played by employees in determining the root cause of incidents and promoting facility safety as a part of every CSB Investigation. The policy was approved by a unanimous vote of the Board after a roundtable convened by the CSB in 2011 involving accident victims, family members, and employee representatives.
Today the California Supreme Court clarified the meal- and rest-period laws, as well as standards for class certification for these claims, and for off-the-clock claims. This case has been pending before the court since 2008, and the legal impact of the decision is far reaching. Brinker Restaurant Corp. v. Superior Court of San Diego.
Billed as a means to protect out-of-work Oregonians from discrimination, the Oregon legislature passed a new law that prohibits overt unemployment discrimination in job advertisements. Oregon has become only the second state in the country – joining New Jersey – to prohibit this practice.
On March 19, 2012, Indiana Gov. Mitch Daniels signed anti-smoking legislation into law. It will take effect July 1, 2012, and while compliance should not be onerous, violations could be expensive for companies, individual managers and others.
Today, the Supreme Court held that Congress exceeded its authority in subjecting the States to private lawsuits under the self-care provision of the Family and Medical Leave Act (FMLA). Although it is well established that Congress enacted the family care provisions of the FMLA pursuant to its Fourteenth Amendment mandate to ensure equal protection of all citizens, the Court ruled that the FMLA's self-care provision was not tied to an identified pattern of sex-based discrimination on the part of the states and, therefore, does not permit suits against the states by their employees. Coleman v. Maryland Court of Appeals
Today, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia invalidated key provisions of the National Labor Relations Board's "Notification of Employee Rights" rule, under which all covered employers would have been required after April 30th of this year to post an 11" x 17" poster, or else to face possible legal consequences. While she left the actual posting requirement intact, she ruled that the proposed penalties attached to the Board's rule were unlawful under the National Labor Relations Act (NLRA).
As you know, last year the Georgia Supreme Court issued a new rule prohibiting non-lawyers, such as payroll clerks or human resources professionals, from signing garnishment pleadings that are filed in court. Doing so was, in the Court's view, the unlicensed practice of law.
On February 1, 2012, Indiana Governor Mitch Daniels signed right-to-work legislation into law. Right-to-work laws prohibit anyone from forcing a person to join or support a union as a condition of employment. That is to say, they protect an individual's fundamentally American "right to work" without being forced to join, or pay any of their earnings, to any group. Right-to-work laws do not in any way prevent people from joining or paying dues to a union if they freely choose to do so.
Employers with operations and employees in New York State should by now be aware that the first notice to all employees regarding their pay status, required by the N.Y. Wage Theft Prevention Act (WTPA), must be given by January 31, 2012, and annually from now on. If you have not given these notices by now, you should have plans to do so before the end of the month. Fisher Phillips described the requirements imposed by the WTPA in an Alert that was distributed in April 2011.
All employers maintaining the Occupational Safety and Health Administration's 300 Logs for workplace injuries and illnesses pursuant to OSHA's recordkeeping standard must post their 2011 annual summary by February 1, 2012. Employers must utilize the annual summary form (form 300A) when complying with the posting requirements.