Legal Alerts Archive
In response to a recent Circuit Court decision, the State of Florida Agency for Workforce Innovation (AWI) has announced that, effective June 1, 2011, the Florida minimum wage will increase to $7.31 per hour. With this increase, Florida will once again exceed the federal minimum wage, and employers operating within the State will be required to comply with the higher standard.
Employers in Arizona exhaled a sigh of relief as Governor Jan Brewer signed a new law Friday, April 29, 2011. Among other things, the new law protects employers who take action against employees suspected of working while impaired by marijuana or other prohibited substances.
- New Screening Requirements for Florida Summer Camps4.27.11
The Florida legislature amended Florida Statute 409.175, the law related to screening requirements for summer camps operated in Florida, effective in August 2010. In essence, the new statute provides Florida's Department of Children and Families with the authority to adopt rules relating to the screening requirements for "summer day camps" and "summer 24-hour camps." Though no rules have been adopted as of yet, the statute itself creates a Level 2 background screening requirement (as defined in Fla. Stat. 435) for all "summer day camp" and "summer 24-hour camp" "personnel."
On April 27, 2011, the U.S. Supreme Court upheld the enforceability of class action waiver provisions in arbitration agreements. Under such provisions, parties both agree to arbitrate their disputes, and waive the right to participate in class action lawsuits or class arbitrations. The Court's ruling allows businesses to require customers to arbitrate their disputes individually, and reaffirms the federal policy favoring arbitration. This is good news for employers. AT&T Mobility LLC v. Concepcion.
On April 13, 2011, Philadelphia Mayor Michael A. Nutter signed the Fair Criminal Screening Standards Ordinance, which will change both the application and screening processes for entities with employees working in Philadelphia. This ordinance will become effective on July 12, 2011.
The Social Security Administration (SSA) has resumed sending out No-Match letters to employers. This ends a long break that started when the Department of Homeland Security's 2007 no-match regulation (now rescinded) was blocked by a court. SSA's new letter says that the recipient is not required to respond, and that the letter alone should not be the basis for taking any adverse action against the employee listed. If you do respond to the letter, the SSA may share the information with the Internal Revenue Service or the Department of Justice.
The New York Wage Theft Prevention Act (WTPA), signed into law last December, became effective April 9. The new law imposes on New York employers a variety of more stringent pay notice requirements and increases penalties for violations of wage payment as well as notice and recordkeeping violations. All New York employers will need to ensure that their practices are in compliance.
- Is the sky really falling?4.11.11
Last week, the U.S. Department of Labor published a Final Rule concerning changes to its regulations and interpretations. One portion of the Final Rule's commentary appears to say that the DOL is now taking the position that employees doing the typical work of service writers/service advisors/service salespeople (we'll refer to them all as "service writers") are NOT exempt from overtime under the federal Fair Labor Standards Act.
After a lengthy wait, the Equal Employment Opportunity Commission (EEOC) has issued final regulations and interpretive guidance for the Americans With Disabilities Amendments Act (ADAAA), the new disability law which was passed in 2008. Many employers were prepared for the worst after the agency first proposed dramatic and game-changing regulations in 2009 which would have tilted the playing field even further in favor of employees. Although the final regulations published on March 24, 2011 strongly emphasize that the law's coverage is to be quite broad, the EEOC pulled back from its original position and published regulations that are fairly consistent with the statute.
Sometimes cases turn on a single word or phrase, whether those pivotal words are found in a statute, regulation, rule, handbook or an email. It's a rarity that those singular expressions or phrases have as widespread an impact as the words at issue in a Supreme Court decision issued on March 22, 2011. In a 6 -2 ruling (Justice Kagan took no part in the consideration or decision of the case), the Supreme Court clarified the meaning of the words "filed any complaint" from the Fair Labor Standards Act's (FLSA) anti-retaliation provision. Kasten v. Saint-Gobain Performance Plastics Corp.
- Supreme Court Holds That Company May Be Liable For The Discriminatory Motives Of Non-Decision Makers3.1.11
On March 1, 2011, the U.S. Supreme Court held that an employer may be liable for the discriminatory motives of a supervisor who influences but does not make the ultimate employment decision. The Court's ruling will impact employment discrimination claims where multiple individuals are claimed to have made, caused, or influenced the ultimate employment decision. Staub v. Proctor Hospital.
U.S. Immigration and Customs Enforcement (ICE) has started to serve another round of I-9 Notices of Inspection (NOIs) to businesses nationwide. ICE is expected to issue NOIs to over 1,000 businesses in the next few days. The NOIs require in-person inspection of I-9 employment verification forms and payroll documentation. Targeted employers are given three business days to prepare for a meeting with federal officials for review of the requested documentation. In the recent past, ICE has selected businesses for audit based on specific leads and information regarding allegations of hiring unauthorized workers, exploiting workers, and paying unfair wages. ICE also has targeted certain industries, including hospitality, manufacturing, and construction. Fines for uncorrected technical and substantive errors on the forms range from $110 to $1,100. Higher fines apply for knowing employment of unauthorized workers. Even if you do not receive an NOI in this round of audits, we recommend that you take this opportunity to conduct an audit of your I-9 compliance and policies.
A California appellate court recently decided that an employee's email messages to an attorney about suing her employer could be used against her at trial. The messages were not protected by the attorney-client privilege, because the employee knowingly sent the messages from her work email account. This unusual legal result was made possible because the employer had a written policy that clearly stated messages sent on the employer's electronic communications system were not private. Holmes v. Petrovich Development Company, LLC.
On January 27, 2011, the U.S. Citizenship and Immigration Services (USCIS) announced that it had received a sufficient number of H-1B petitions to reach the congressionally mandated cap for FY 2011. USCIS determined that January 26, 2011 is the "final receipt date" for new H-1B worker petitions requesting employment start dates before October 1, 2011. Petitions for extensions of stay or change of employer for workers who are currently in H-1B status do not count towards the H-1B cap and USCIS will continue to accept petitions for individuals in those categories.
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 2010 annual summary by February 1, 2011. Employers must utilize the annual summary form (form 300A) when complying with the posting requirements.
On January 24, 2011, the Supreme Court in a unanimous ruling determined that an employee who does not directly engage in protected activity can still assert a claim for retaliation under Title VII of the Civil Rights Act as a victim who falls within the "zone of interests" of protection afforded by the statute. Writing for the majority, Justice Scalia stated "[w]e think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired." And further, that the employee "is a person aggrieved with standing to sue." Thompson v. North American Stainless, LP.
- Court ducks Constitutional privacy issue1.19.11
In a rare unanimous decision, the Supreme Court held on January 19, 2011 that NASA's background inquiries of its contract employees regarding drug treatment or counseling and other negative "general behavior or conduct" of its contract employees were tailored to the government's interests in managing its workforce and therefore did not violate the employees' right to informational privacy. The Court ducked the issue of whether such information is actually protected by any Constitutional right to privacy, leaving that question open for another day. Nelson v. NASA.
Effective immediately, Florida state agencies under the direction of the Governor, and any contractors or subcontractors with those agencies, are required to use the U.S. Citizenship and Immigration Services' E-Verify system to check the legal work authorization of employees.
On December 22, 2010, the Internal Revenue Service, with the agreement of the United States Departments of Treasury, Labor, and Health and Human Services, announced that non-grandfathered, fully-insured group health plans will not be required to comply with the non-discrimination requirements of Internal Revenue Code until after regulations or other administrative guidance has been issued. Until such time, any sanctions for failure to comply do not apply.
Earlier this week, the U.S. Supreme Court declined to review six labor and employment law cases which had been presented. The Court showed no favoritism, denying petitions for certiorari on cases coming out of U.S. Courts of Appeal for the 2nd, 3rd, 5th, 8th, 9th, and Federal Circuits and covering substantive and procedural issues, including age claims, disability claims, retaliation, and due process, among others.
On November 17, 2010, the Internal Revenue Service, Department of Labor and Department of Health and Human Services jointly issued an amendment to the interim final regulations regarding a health plan's status as a "grandfathered health plan" under the recent healthcare reform legislation.
In the final vote tally completed nearly two weeks after the close of the election polls, Arizona's medical marijuana law passed by a margin of just over 4,000 votes. Like prior attempts to legalize medical marijuana in Arizona, Proposition 203 legalizes marijuana use by authorized patients for limited medical purposes under state law. But unlike the prior versions which passed in 1996 and 1998 and which were effectively nullified, Proposition 203 seems more likely to survive technical wording challenges. Arizona joins 14 other states that have adopted similar medical marijuana laws.
The National Labor Relations Board's General Counsel has issued a complaint against a Connecticut ambulance service alleging that one of its union-represented emergency medical technicians was unlawfully fired after criticizing her supervisor on Facebook. The complaint also alleges, among other things, that the company's blogging and Internet policy "interferes with, restrains, and coerces" employees in the exercise of their rights under the National Labor Relations Act. An administrative law judge is scheduled to hear the complaint in January.
During yesterday's election, nearly 68% of Georgia voters said "yes" to a constitutional amendment authorizing a new statutory framework for enforcement of restrictive covenants in the state.
On September 23, 2010, the California Department of Workers' Compensation (DWC) mandated that all employers post an updated information poster and distribute pamphlets regarding workers' compensation to all employees who start work on or after October 8, 2010. In addition, all employers that have Medical Provider Networks (MPN), and those that are planning to change their MPN status, are required to post and distribute an additional MPN notice.
- OSHA Issues Memorandum Announcing "Administrative Enhancements" to OSHA's Penalty Policies to Dramatically Increase Employers' Fines10.7.10
On September 29, 2010, the Occupational Safety and Health Administration (OSHA) took the next step in its 22-month effort to increase penalties and more vigorously enforce the OSH Act. OSHA head Dr. David Michaels sent to all of OSHA's Regional Administrators and the State Plan Administrators a memorandum outlining the deployment of the new Administrative Penalty. Effective October 1, 2010, all OSHA Area offices are directed to utilize the new penalty policy and the associated calculation system.
The U.S. Immigration and Customs Enforcement (ICE) announced Tuesday that it had settled with clothing retailer Abercrombie & Fitch on a fine in excess of $1,000,000 for violations of the Immigration and Nationality Act. The violations related to an employer's obligation to verify its workers for employment eligibility.
The Small Business Jobs Act of 2010 provides the opportunity to convert pre-tax retirement plan contributions to a Roth Account within that plan. Prior to this change, the only way to convert pre-tax retirement plan money to a Roth Account was to roll it over to a Roth IRA.
U.S. Immigration and Customs Enforcement (ICE) began serving Notices of Inspection (NOIs) to over 500 businesses nationwide on September 15, 2010. The NOIs require in-person inspection of I-9 employment verification forms and payroll documentation. Targeted employers are given three business days to prepare for a meeting with federal officials for review of the requested documentation.
Perception is often more important than reality, and perception can vary radically among people of different religions and national origins.
- Recent Amendment To Massachusetts Law Regarding Personnel Records Places New Affirmative Obligation On Employers9.1.10
On August 5, 2010, Governor Deval Patrick signed into law "An Act Relative to Economic Development Reorganization" (M.G.L. c. 240, §1, et. seq.), with a stated purpose of providing a business-friendly environment, stimulating job growth, and coordinating economic development activities funded by the Commonwealth. Buried within the Act is a significant amendment to the Massachusetts Personnel Records Statute (M.G.L. c. 149, § 52C). The amended statute, which became effective immediately, now requires that employers provide notice to employees every time certain negative information is placed in their personnel files. This affirmative notice obligation is in stark contrast to prior law, which only required that employers allow employees to review their personnel records at the employee's request.
The changes in the law made as part of healthcare reform require most cafeteria plans to be amended by December 31, 2010. If you have a health flexible spending account (FSA), expenses for over-the-counter drugs cannot be reimbursed after December 31, 2010, unless the drug is insulin or is prescribed by a physician. The definition of dependent for FSA purposes can include a participant's child who is under age 27.
On August 6, 2010, Governor Deval Patrick signed into law legislation which overhauls the Commonwealth's Criminal Offender Record Information (CORI) law. Currently, the Massachusetts Fair Employment Practices Law prohibits employers from asking questions of job applicants about arrests that do not result in convictions and convictions for certain misdemeanors, but allows questions about felony convictions and about misdemeanor convictions not protected from disclosure.
One of the provisions of the "Dodd-Frank Wall Street Reform and Consumer Protection Act" (the so-called financial reform act) is a requirement that public companies implement a "clawback" policy for their incentive-based compensation. This policy must provide that if the company is required to restate its financial statements because of material noncompliance with any financial reporting requirements under the Securities laws, the company will recover from any current or former executive officer who receives incentive-based compensation (including stock options) during the three-year period preceding the date of the restatement any amount in excess of the amount that would have been paid to the executive under the restated financial statements.
- Appellate Court Decision Permits California Employers to Ban Unions from Picketing on Most Private Property7.22.10
A ruling this week by a California Court of Appeal will enable California employers and commercial property owners to keep unions off their property and to distance themselves from union demonstrations. This new decision is Ralphs Grocery Company v. United Food And Commercial Workers Union Local 8, decided Monday, July 19, 2010. Click here to view the decision.
Four days before retiring from his post as General Counsel of the National Labor Relations Board ("NLRB"), Ronald Meisburg issued a Memorandum that severely limits the use and usefulness of mandatory arbitration agreements in a non-union setting. Although not legally binding, General Counsel Memorandums serve as case-handling guidelines for Regional offices nationwide.
- Supreme Court Holds That International Unions Are Not Accountable For Inducing Locals To Violate Collective Bargaining Agreements6.24.10
In the final labor and employment law decision for the 2009-10 term, on June 24, 2010, the Supreme Court held that a unionized employer may not pursue an action against an international union for inciting a local union to violate the terms of a collective bargaining agreement. The Supreme Court also held that it was a court's job (rather than an arbitrator's job) to determine whether a collective bargaining agreement with an arbitration clause was actually entered into. Granite Rock Company v. International Brotherhood of Teamsters.
On June 17, 2010, the Internal Revenue Service (IRS), Department of Labor (DOL) and Department of Health and Human Services (HHS) jointly issued interim final regulations regarding a group health plan's status as a "grandfathered health plan" (i.e., one in existence on March 23, 2010) under provisions of the recent healthcare reform legislation. This legislation creates a multitude of new requirements for group health plans ranging from the minimum level of benefits that must be provided to dictating which individuals must be offered coverage under a plan.
On June 22, 2010 the Department of Labor issued an Administrative Interpretation clarifying the definition of "son or daughter" under the Family and Medical Leave Act (FMLA) with respect to non-military leave. The new Interpretation grants leave rights to individuals who assume the responsibilities of a parent by providing day-to-day care or financial support for a child, regardless of whether there is a legal or biological relationship between the individual and the child.
The Kansas Indoor Clean Air Act prohibits smoking in the enclosed areas of any public place or place of employment (including restaurants and bars). The only indoor places in the state where smoking is allowed are: 1) tobacco shops that derive at least 65% of their gross receipts from the sale of tobacco; 2) gaming floors of lottery gaming facilities or racetrack gaming facilities; 3) up to 20% of a hotel or motel's sleeping rooms; 4) designated indoor areas of private outdoor recreational clubs (i.e. golf clubs, hunting clubs) where minors are prohibited; 5) private homes or residences not used as a day care home; 6) designated smoking areas of adult care homes and long-term care facilities; and 7) class A and B private clubs licensed by the state of Kansas before January 1, 2009, that notify the Secretary of the Kansas Department of Health and Environment by September 28, 2010, of their intent to allow smoking.
Recently the California Supreme Court held that third-party merchants were not "employers" as defined by the Industrial Welfare Commission, in part because they did not control the conditions of employment for the subject agricultural employees (strawberry pickers), i.e., did not hire them, fire them, or even have a right to tell them what to do or direct their work. The practical effect in this litigation was that the employees could not obtain unpaid wages from third-party merchants after the uncontested employer became insolvent. Martinez v. Combs.
- Could The Decision Come Back To Haunt Employers?6.21.10
In a narrow 5-4 decision, the Supreme Court handed employers yet another victory in the area of employment arbitration agreements today by holding that, in many circumstances, the issue of whether the agreement is enforceable should be made by an arbitrator and not a court of law. Rent-A-Center, West, Inc. v. Jackson.
On June 17, 2010 the U. S. Supreme Court unanimously held that a public employer's search of an employee's text messages was reasonable and did not violate the employee's constitutional rights. The decision overturned a ruling by the United States Court of Appeals for the 9th Circuit, which found the employer's search was unreasonable in scope and, therefore, violated the Fourth Amendment of the Constitution which prohibits unreasonable searches and seizures. City of Ontario v. Quon.
On June 17, 2010 the U. S. Supreme Court ruled that the National Labor Relations Board (NLRB) was not authorized to act during the 27-month period after December 2007 when the Board had only two of its five members. The case required the Court to interpret the language of the National Labor Relations Act (NLRA), which provides for a five-member Board, but permits delegation to three-member panels, and also contains an exception for two-member quorums. New Process Steel, L.P. v. National Labor Relations Board.
On July 1, 2010, the minimum wages set by the Nevada State Labor Commissioner for Nevada's two-tiered minimum wage system will increase. Currently, the state's minimum wage is either $6.55 ($7.25 under federal law) or $7.55 per hour, depending on whether an employer offers qualified health benefits to its employees.
- Even If Plaintiff Is Not Technically "Prevailing Party"5.24.10
On May 24, 2010 the U. S. Supreme Court held that a party does not need to be a "prevailing party" in order to be eligible for an attorneys' fees award under the Employee Retirement Income Security Act of 1974 (ERISA). In reaching this decision, the Court relied on the statutory language of the applicable statute, which does not include any "prevailing party" requirement, and noted that Congress is able to impose limitations on the availability of attorneys' fees when it deems fit. Hardt v. Reliance Standard Life Insurance Company.
The U.S. Supreme Court handed employees and job applicants a victory by recognizing that, in a disparate impact (i.e., unintentional discrimination) case, the Title VII statute of limitations is measured from the employer's adoption and each subsequent use of an unlawful employment practice. Each use of an unlawful employment practice – such as multiple rounds of hiring based on a written test that has a disparate impact on minority applicants – is now considered a new violation of Title VII, which will make it easier for employees to file timely claims. Lewis v. City of Chicago.
A new rule issued May 20, 2010, requires federal contractors and sub-contractors to provide employees notice of their rights under the National Labor Relations Act. This rule implements President Obama's Executive Order 13496, signed early last year.
- Handle With Care!5.11.10
The IRS announced last week that it will be looking at 1,200 401(k) plans by way of a plan compliance questionnaire. Letters from the IRS are expected to go out at the end of May. An employer receiving a letter will be assigned a personal identification number (PIN) to use when filling out the questionnaire online. The employer has 90 days to complete the form, but can get an extension. Answering the questionnaire is "technically voluntary," but an IRS spokesperson made it clear that they want the information.
On April 27, 2010 the U.S. Supreme Court decided that class arbitration is permissible only when the parties to a contract specifically agree. That is, silence does not amount to an implicit agreement to class arbitration. This question had confounded courts and arbitrators for years. AnimalFeeds v. Stolt-Nielsen.