Legal Alerts Archive
- 3 Things You Need To Know About Opinion Letter7.23.19
Trucking companies will no longer need to pay their drivers for certain off-duty time, potentially including time spent sleeping in their sleeper berth units, after the Labor Department issued an opinion letter yesterday confirming that such time is generally not compensable. The letter is a welcome one for trucking industry, clearing up confusion caused by recent conflicting court decisions that held that off-duty time may be limited to eight hours a day when a driver is on a trip and spending off-duty time in their sleeper. However, you should make sure you understand the full ramifications of the opinion letter before changing your pay practices. Here are three things you need to know about yesterday’s significant news.
The news that President Trump selected Eugene Scalia to take over as Labor Secretary late last week caught some employers by surprise; after all, it was just a week ago that we were analyzing the track record of the soon-to-be-acting Secretary who many expected to helm the Department of Labor for an extended period of time. But now that it appears we have a likely successor in place to take over for Alexander Acosta, all employers are turning their attention to the same issue: what does this transition mean for the business community? We’ve once again assembled the opinions of some of our firm’s foremost thought leaders – including one of our partners who recently worked side-by-side with Scalia on a significant workplace law matter – to help provide a glimpse into what you should expect from the U.S. Department of Labor. The consensus opinion? Scalia will aggressively battle against intrusive and overreaching regulations that hamstring the country’s employers, and will quickly endear himself to the business community.
Thanks to recent negotiations among state lawmakers, it appears that California employers may get a temporary reprieve on some of the more sweeping data privacy requirements that were set to take effect in just a few short months. However, the pending legislation that would provide the delay would not exempt employers from significant disclosure requirements that also comprise the California Consumer Privacy Act (CCPA) – meaning you should still be in the process of preparing for the new law at your workplace.
When the news broke Friday afternoon that Labor Secretary Alexander Acosta would be resigning from his post, employers across the country began wondering what this transition would mean for them. You may have even heard speculation that Acosta’s immediate replacement could accelerate the agenda that has been restoring balance to the employer-labor relationship over the past several years. We’ve assembled the opinions of some of our firm’s foremost thought leaders – including a former colleague of the incoming acting secretary – to help provide a glimpse into what you should expect from the U.S. Department of Labor in both the short term and the long term.
Immigration and Customs Enforcement (ICE) threatened to start to carry out a series of immigration raids this weekend seeking to identify and apprehend undocumented individuals – with some potentially occurring at the nation’s workplaces. These potential raids might continue for weeks or months, with varying levels of intensity and geographic focus. Even if they do not materialize to the extent originally promised, just the specter of these enforcement activities has raised a number of questions from employers about how to respond to such an action, and how to minimize the chances of them happening in the first place.
New Jersey Governor Phil Murphy recently signed into law amendments to the state’s medical marijuana law, providing greater clarity when it comes to the workplace implications of medical marijuana use by employees and applicants, while creating additional obligations for employers. The July 2 amendments took effect immediately, which means you should not delay incorporating the new law’s requirements into your day-to-day human resources practices.
While many Oregonians were enjoying a leisurely holiday break last week, Oregon lawmakers were busy enacting the nation’s most generous paid leave program. Governor Kate Brown stated she intends to sign into law “HB 2005: Paid Family Leave,” which will provide 12 weeks of paid leave to just about every employee in the state (yes, even if you only have one employee), to be funded by a new payroll tax paid by both workers and employers with 25 or more employees. While the law will not kick in until 2023, it’s never too early to learn about what’s around the corner and start to prepare. What do Oregon employers need to know about this groundbreaking new law?
The Washington Supreme Court held for the first time today that obesity is a protected class under state anti-discrimination law (Taylor v. Burlington Northern Railroad Holdings, Inc.). This decision runs counter to recent federal court decisions in other parts of the country that have said obesity not caused by an underlying physiological disorder or condition does not qualify as an impairment under federal law. The main reason for this distinction is that Washington state disability discrimination law offers broader coverage than the federal Americans with Disabilities Act (ADA).
The National Labor Relations Board just relaxed its test for determining the legality of an employer’s anticipatory withdrawal of union recognition prior to the expiration of the collective bargaining agreement. In the July 3 Johnson Controls, Inc. decision, the Board upheld an employer’s right to suspend bargaining and serve notice within 90 days prior to CBA expiration of its desire to withdraw recognition from an incumbent union thereafter, upon receiving objective evidence that the union has actually lost majority support.
In a unanimous decision late last week, the 9th Circuit Court of Appeals resuscitated class claims against retail giants Nike and Converse that allege employees are owed compensation for time spent undergoing security checks when exiting the retail stores (Rodriguez v. Nike Retail Stores, Inc.; Chavez v. Converse, Inc.). On Friday June 28, the federal appellate court held that the lower district court – which had ruled in favor of the employers by applying the federal de minimis doctrine – needs to conduct a do-over to comply with a recent California Supreme Court decision that all but eliminates the de minimis doctrine based on the facts before the high court. The bar set by the courts is high; California employers may now need to pole vault in order to scale it.
By a 9-0 vote, the U.S. Supreme Court ruled today that by and large, the courts should continue deferring to a federal agency’s reasonable interpretation of its own ambiguous regulations, leaving a good deal of power in the hands of agencies despite an outcry that this doctrine interferes with governmental separation of powers. In the last workplace law decision of the Supreme Court’s term, it also ruled stare decisis cuts strongly against overruling Auer and that the Court would need a particularly “special justification” to reverse Auer. Although the underlying case was not employment-related, today’s decision in Kisor v. Wilkie could have far reaching impact on employers and workplace law compliance.
Still grappling with the expansive sexual harassment reforms passed last year, New York businesses and employers will soon need to manage through yet another expansive suite of amendments that will continue the state’s ongoing implementation of stronger, and more burdensome, antiharassment and antidiscrimination laws. On the last day of its legislative session, the New York State Senate and Assembly passed sweeping reforms meant to overhaul the state’s antidiscrimination laws. Governor Andrew Cuomo, who advocates for more robust workplace harassment laws, is expected to sign the bill without delay. Once enacted, the amendments will impact every workplace in New York.
This past week was a busy one for New York State lawmakers. In addition to passing game-changing legislation overhauling the state’s discrimination laws, the New York State Senate and Assembly just passed two pay equity bills that will have a significant impact on all New York businesses.
Employers may be surprised to learn that the Republican-controlled National Labor Relations Board just issued a unanimous decision invalidating an employer’s mandatory arbitration agreement that could be reasonably interpreted as preventing employees from filing charges with the Board. The June 18 Prime Healthcare decision analyzed the employer’s arbitration agreement using the relatively new Boeing Co. standard for evaluating facially neutral policies and rules that potentially interfere with employees’ protected rights, but fell on the side of the workers. Yesterday’s decision may require you to adjust your arbitration agreements to ensure you stay on the right side of the law.
Employers in Dallas and San Antonio are on the verge of having to provide your workers with paid sick leave – and these new city ordinances are set to go into effect in the next few weeks. When the legislative session came to a close on May 27, the state legislature had failed to pass a bill that would have banned municipal paid sick leave ordinances such as the ones passed in Austin, Dallas, and San Antonio in 2018 despite Texas employers’ high hopes.
The National Labor Relations Board issued a decision on Friday reversing 37 years of precedent and thereby granting employers greater rights to limit union activity on their premises. Under the “public space” exception, employers had to allow nonemployee union representatives access to the public areas of their property, including restaurant dining areas and cafeterias, to engage in promotional or organizational activity. But in the June 14 UPMC decision, the Board abolished that exception and held that employers no longer have to allow nonemployee union representatives access to public areas, unless the union has no other reasonable means of communicating with employees or the employer discriminates against the union by permitting similar groups access.
A federal Court of Appeals just ruled that extreme obesity not caused by an underlying physiological disorder or condition does not qualify as an impairment under the ADA. Under the 7th Circuit’s June 12 ruling, proof that extreme obesity was caused by an underlying physiological disorder or condition is necessary to implicate coverage under the Americans with Disabilities Act. What can employers take from the Richardson v. Chicago Transit Authority decision?
Illinois lawmakers recently approved House Bill 1438, referred to as the “Cannabis Regulation and Tax Act,” legalizing recreational marijuana. Governor Pritzker is expected to sign the bill into law, making Illinois the 11th state to legalize marijuana and the first state in which a legislature approved commercial sales.
In welcome news to Massachusetts employers, the Department of Paid Family and Medical Leave (DPFML) just provided much-needed answers to questions raised by the Legislature’s three-month delay of the nascent paid leave law.
Massachusetts Governor Charlie Baker, along with state house and senate leadership, just announced that they had agreed to implement a three-month delay to the Commonwealth’s robust Paid Family and Medical Leave program late on Tuesday.
By a unanimous 9-0 decision, the U.S. Supreme Court today declined to extend California’s wage-and-hour laws to employees working on offshore drilling platforms subject to the Outer Continental Shelf Lands Act (Parker Drilling Management Services Ltd. v. Newton). Although this decision represents a victory for the employer involved in the dispute, you should check with your legal counsel to ensure you are in compliance with the correct legal standard given the nuanced nature of this ruling.
The U.S. Supreme Court unanimously ruled today that Title VII’s administrative exhaustion requirement—whereby an aggrieved employee first must file a claim with the Equal Employment Opportunity Commission (“EEOC”) or a state agency before filing a lawsuit—is merely a claim-processing rule, rather than jurisdictional. As a result, an employer who does not assert “failure to exhaust” as an affirmative defense to a lawsuit might waive the ability to seek dismissal on that basis. In light of today’s decision, employers must ensure they identify an employee’s failure to exhaust at the outset of any Title VII litigation to preserve their ability to dismiss the claims on that ground (Fort Bend County v. Davis).
Pushing its deadline back for the second time, the Equal Employment Opportunity Commission (EEOC) recently announced that it plans to issue amended regulations related to incentivizing participation in employer-sponsored voluntary wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) by the end of this year. What should employers know about the May 22 announcement, and why might it be different from prior deadlines set by the EEOC?
This past Memorial Day weekend, the southeastern region of the United States experienced a historic heatwave that set all-time records. It’s only going to get hotter, and temperatures throughout the summer can create hazards for workers working both outside and inside. You could be held liable for creating conditions that lead to heat-related injuries and illnesses that may occur during these warm months, so you should take steps now to keep your employees safe and limit your legal exposure.
The 2018 Colorado state elections resulted in a Democratic House, Senate, and governor, smoothing the way for the 2019 legislature to pass six new employment bills. Some of these pieces of legislation had been proposed in various forms in previous sessions but failed to pass – until now. While a few still await Governor Jared Polis’s signature, they are all expected to be signed and soon should be state law.
Led by Associated Industries of Massachusetts (AIM), a nine-member coalition of the Massachusetts business community, along with employee and low-income advocacy groups, just requested a three-month delay to the start of contributions to the Commonwealth’s nascent paid family and medical leave program.
In a groundbreaking decision, a New York state appeals panel just extended union organizing rights to farmworkers, perhaps setting the stage for other states to do the same. While farmworkers have traditionally been exempted from the National Labor Relations Act (NLRA) since the statute’s inception, states can supplement the federal law by, for example, granting agricultural workers the rights to organize and bargain collectively. A split panel did just that with its May 23 decision, finding that the farmworker exclusion from the New York State Employee Relations Act (SERA), which was passed in 1937, violated the state constitution.
If the Department of Labor has anything to say about it, employers may soon get a bit of a reprieve when it comes to dealing with the administrative and compliance difficulties associated with the Family and Medical Leave Act. In a May 21 announcement, the agency’s spring regulatory agenda – highlighting its plans for the coming year and beyond – contained a noteworthy entry calling for information to help revise the statute’s regulations to help “reduce administrative and compliance burdens on employers.” What do employers need to know about this impending development, and how might they influence this process to their benefit?
The National Labor Relations Board announced today in its spring 2019 regulatory agenda that it intends to consider rulemaking in several substantive areas arising under the National Labor Relations Act.
Under a new law signed by Governor Jared Polis yesterday, Colorado employers will soon face potential criminal charges for failure to pay wages. Once the new law takes effect on January 1, 2020, you will need to ramp up your wage and hour compliance efforts or risk facing criminal penalties. How exactly can Colorado employers avoid becoming felons?
An advice memorandum just released by the National Labor Relations Board General Counsel’s office could be the beginning of the end for “Scabby the Rat,” “Corporate Fat Cat,” and similar oversized balloons often employed by unions to exert pressure on neutral employers as part of secondary picketing actions. The Board’s counsel recommended in a May 14 release that the NLRB reverse several Obama-era decisions that permitted the use of such balloons, as well as the erection of stationary banners, as lawful non-picketing secondary activity under the National Labor Relations Act (NLRA). If the current Board follows the recommendation contained in the advice memo, businesses will have a valuable tool to help them with such union confrontations.
Finding that “workforce mobility is important to economic growth and development,” Washington just passed a new law that will significantly restrict noncompetition agreements with both employees and independent contractors. The governor signed the bill it into effect on May 8, ushering in a new era for restrictive covenants in the state.
Janet Dhillon’s confirmation as the new Chair of the Equal Employment Opportunity Commission (EEOC) earlier this week will have an impact on employers in more ways than one. Besides installing an agency head that is seemingly in a position to understand and balance the interests of the business community and workers alike, the Senate has restored a quorum to the agency for the first time in several months – meaning that the agency can get down to work on several critical initiatives. What do employers need to know about the new head of the federal employment law agency?
The Social Security Administration recently resurrected its practice of issuing Employer Correction Request notices – also known as “no-match letters” – when it receives employee information from an employer that does not match its records. If you find yourself in receipt of such a letter, we recommend you take the following seven steps in conjunction with working with your Fisher Phillips counsel.
The EEOC just announced that, in order to comply with a recent shocking court order, most employers will need to turn over compensation information from both 2017 and 2018 when they submit their Component 2 pay data with their EEO-1 submission on September 30, 2019. While there is still a chance that an appeals court could put the pay data/hours worked reporting requirement on hold once again, or that a newly reconstituted EEOC Commission might modify the regulations, you should start taking action immediately under the assumption that all of this information will need to be disclosed by the recently announced due date. Meanwhile, the May 31, 2019 deadline for the traditional demographic data (now called “Component 1” data) remains firmly in place.
In a major positive development for gig economy businesses, the U.S. Department of Labor today issued an opinion letter today confirming that certain workers providing work for a virtual marketplace company are, indeed, independent contractors. While this letter can only be used as an authoritative legal defense by the specific (unnamed) gig economy business that requested the letter, this publication still provides the federal government’s official interpretation on whether a certain business model or practice complies with the law. We now have a solid understanding of how the current USDOL views the misclassification question and will approach it from an enforcement perspective, and the news is all good for gig businesses.
The Kentucky Court of Appeals just held that non-lawyers may no longer represent employers in unemployment proceedings, ruling that such a practice is unconstitutional. As a result, you must immediately adjust any business practice that involves human resources managers, supervisors, or other non-lawyers handling such administrative proceedings.
A federal court announced today that employers have until September 30, 2019 to turn over pay data as part of your revised EEO-1 reporting obligations. After several weeks of uncertainty, you now have a definitive due date to mark on your calendars for this unprecedented new obligation. While there is still a chance that an appeals court could put the pay data reporting requirement on hold once again, you need to start taking action immediately under the assumption that September 30th is the actual due date for the delivery of your 2018 compensation information. This ruling is very significant because it impacts all employers with 100 or more workers.
By a 5-to-4 vote, the Supreme Court ruled today that the Federal Arbitration Act does not allow a court to compel class arbitration when the agreement does not clearly provide for it. As a result, employers whose valid arbitration agreements do not contain an explicit class action waiver (assuming they do not expressly consent to class arbitration) can rest easy knowing that the agreements allow them to compel alleged class claims to individual arbitration (Lamps Plus Inc. v. Varela).
Tennessee employers who want to avoid workplace-bullying lawsuits need only adopt the state’s model anti-bullying policy and they will enjoy immunity from such claims, thanks to a new law just signed into effect yesterday. Thanks to H.B. 856, an expansion of the Healthy Workplace Act, private employers can now take advantage of the law to shield themselves from troublesome legal claims spurred by allegations of workplace bullying. What should Tennessee employers do in order to capitalize on this new law?
In a highly anticipated move, the U.S. Supreme Court today agreed to consider a trio of cases that will determine whether the nation’s most prominent workplace discrimination statute prohibits employment discrimination against LGBT workers. The issue: whether Title VII’s ban against “sex” discrimination covers claims involving sexual orientation and gender identity. Employers will finally have a definitive answer regarding the contours of the federal primary civil rights law as it applies to members of the LGBT community.
The Massachusetts Department of Paid Family and Medical Leave—the agency charged with regulating and enforcing the Commonwealth’s nascent paid leave program—just issued its mandatory workplace poster and guidance on the law’s notification requirements. Yesterday’s announcement provides employers with needed guidance on the law’s notice requirement—an obligation you must meet by May 31, 2019. What do Massachusetts employers need to know about this latest development?
Despite a 10 percent overall drop in the number of charges of employment discrimination, the Equal Employment Opportunity Commission just reported that sexual harassment charges filed with the agency jumped by 13.6 percent from the previous year. The 7,609 sexual harassment charges received in FY clearly demonstrate that the #MeToo movement is in no way slowing down. What do employers need to know about this development?
The New York City Council just passed legislation which will prohibit employers from requiring a prospective employee to submit to drug testing for the presence of tetrahydrocannabinols (THC), the active ingredient in marijuana, as a condition of employment. The law, which is expected to soon be signed into effect by the mayor, will amend the New York City Human Rights Law and make it a discriminatory practice to require a job applicant undergo pre-employment marijuana testing. What do New York City employers need to know about this latest development?
Under a new law just signed by Governor Matt Bevin yesterday, many Kentucky employers will need to change their human resources practices and provide reasonable accommodations to workers for pregnancy, childbirth, and related conditions. The new law goes into effect on June 27, 2019, so employers will need to make adjustments in order to stay in compliance. What exactly must Kentucky employers do?
The U.S. Department of Labor just became the latest federal agency to propose a rule to limit the scope of joint employment liability, this time for wage and hour matters. If the rule released earlier today is adopted in its current form, the USDOL would examine whether a business is a “joint employer”—equally liable for liability under federal wage and hour laws—through the use of a four-factor balancing test, assessing whether the potential joint employer:
The USDOL has proposed to update guidance regarding how the "regular rate" is calculated for purposes of overtime pay. While the provisions are meant to clarify terms rather than change the calculation, employers should be prepared for increased awareness of the fact that the “regular rate” for purposes of overtime calculations oftentimes is not simply an employee’s assigned hourly rate.
Cincinnati City Council has passed Ordinance No. 0083-2019 barring employers from asking applicants for their salary history. The city becomes the latest of a growing number of jurisdictions to adopt a salary history ban on employers. In addition to Cincinnati, salary history bans exist in the cities of Chicago, Kansas City, Louisville, New Orleans, New York City, Philadelphia, Pittsburgh, and San Francisco. Several counties have also passed similar bans.
Late yesterday, the Office of Federal Contractor Compliance Programs (OFCCP) released its Corporate Scheduling Announcement List (CSAL) in the OFCCP FOIA Library. You can find the list here. Previously, contractors were provided CSAL letters by mail, advising them of the OFCCP’s intent to conduct a compliance audit. However, as foreshadowed in recent directives, OFCCP will only be posting the CSAL in the FOIA library without mailing advanced notification to contractors. Contractors may access this large Excel spreadsheet which contains, among other things, the parent name, the establishment name, and the type of review OFCCP intends to conduct.
Kentucky Governor Matt Bevin signed into law Senate Bill 7 which brings Kentucky back in line with every other state by allowing employers to require employees to arbitrate claims as a condition of employment. The new law, signed yesterday, also allows employers and employees to contractually limit the time period in which employees must file employment-related claims and specifically allows an employer to require, as a condition of employment, a background check. This is all very good news for Kentucky employers.