Input Sought on New Rules to Extend Overtime to More Workers

Posted in Labor Relations

Employers and other stakeholders have just a few weeks in which to provide input on proposed regulations which would raise the salary threshold for workers exempt from overtime to $50,440 a year. On July 6, 2015 the Department of Labor proposed new regulations which would result in extending overtime pay to an estimated five million workers. The regulations would tie the annual salary threshold to inflation or wage growth over time. The DOL has requested input specifically on the current duties tests employees must meet to be exempt from overtime, and on whether non-discretionary bonuses should be considered to satisfy a portion of the salary requirement. You can read the proposal in its entirety on the DOL site. Employers are invited to submit written comments on the proposed rule through September 4 on

EEOC: Sexual Orientation Discrimination Illegal Under Title VII

Posted in Employment Discrimination Harassment & Retaliation

The EEOC has found that workplace discrimination against lesbian, gay, and bisexual workers violates Title VII of the Civil Rights Act of 1964. On July 15, 2015, the EEOC reversed the dismissal of a sex discrimination complaint filed by an air traffic controller against the U.S. Department of Transportation’s Federal Aviation Administration. The complainant claimed that he was not selected for a permanent managerial position because he is gay. Continue Reading

Department of Labor: Most Workers Classified As Independent Contractors Are Employees

Posted in Labor Relations

On July 15, 2015, the Wage and Hour Division of the Department of Labor declared that most workers who are classified as independent contractors are actually employees and cited the erroneous designation of employees as independent contractors to be “one of the most serious problems” at workplaces in the United States. The DOL issued an “Administrator’s Interpretation” that it will utilize to combat this issue. In support, DOL emphasized that problems and complaints involving minimum wage, overtime compensation, unemployment insurance, and workers’ compensation have increased significantly in light of the misclassification of workers. Continue Reading

Texas Federal Court Rules in Favor of NLRB’s “Quickie” Election Rules

Posted in Labor Relations

A federal judge in Texas recently rejected a challenge to the NLRB’s “quickie” election rules that went into effect on April 14, 2015. One of the significant changes resulting from the enactment of the new rules is the shortening of the timeline for union elections, which the NLRB asserts “modernize[s] the representation case process and fulfill[s] the promise of the National Labor Relations Act.” In Associated Builders & Contractors of Texas, Inc. et al. v. N.L.R.B., the plaintiffs, a trade association and a small business advocacy organization, filed suit against the NLRB, arguing that the election rules are invalid under the Administrative Procedures Act because they: (1) exceed the NLRB’s statutory authority by impermissibly restricting an employer’s ability to fairly litigate issues in a union election; (2) violate the NLRA by compelling the invasion of employee privacy rights; (3) violate the NLRA by interfering with protected speech during union election campaigns; and (4) are arbitrary and capricious and an abuse of agency discretion. Continue Reading

EEOC Updates Guidance on Accommodating Pregnant Workers

Posted in Disability, Employee Benefits, Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention

The Equal Employment Opportunity Commission has issued revised pregnancy discrimination guidance setting forth a framework for assessing how far employers must go in accommodating pregnant employees, following the Supreme Court’s ruling earlier this year in Young v. United Parcel Serv., Inc.  In that case, the Court held that, although a policy of providing light duty only to certain workers was facially neutral, it could still violate the Pregnancy Discrimination Act in some circumstances when the employer does not provide the same accommodations to pregnant workers as to other similarly situated employees. Continue Reading

Even Planned Surgery May Be “Unforeseeable” Under the FMLA

Posted in Employment Litigation, Medical & Other Leaves

Employees seeking leave under the Family and Medical Leave Act are supposed to give 30 days’ notice if the need for leave is “foreseeable,” but what does “foreseeable” mean? Based on a recent 11th Circuit Court of Appeals decision, even elective surgery which could be planned far in advance, if “relatively urgent,” would not be foreseeable and thus not require 30 days’ advance notice of the need for leave. Continue Reading

EEOC Encouraged to Address Social Media and “But-for” Causation in Revising Guidance on Retaliation

Posted in Employment Discrimination Harassment & Retaliation

At a meeting of the U.S. Equal Employment Opportunity Commission, convened to address the explosive growth of retaliation charges last week, witnesses made a variety of recommendations, including that the agency revise its retaliation guidance in its Compliance Manual to embrace the Supreme Court’s “but-for” causation standard and to address the impact of social media in the workplace. Continue Reading

Pregnancy Discrimination Prohibition To Be Included in Florida Civil Rights Act

Posted in Employment Discrimination Harassment & Retaliation

In April 2014, the Florida Supreme Court held in Delva v. The Continental Group, Inc. that pregnancy discrimination was encompassed within “sex” discrimination as protected in the then-enacted version of the Florida Civil Rights Act (the “FCRA”), even though it was not explicitly mentioned in the FCRA. In response to this holding, the Florida legislature has now passed Senate Bill 982, which expressly makes pregnancy a protected class under the Florida Civil Rights Act. The bill was approved by the governor on May 21, 2015, and it becomes effective on July 1, 2015. Continue Reading

Glitch in State Department Systems Causing Worldwide Visa Issuance Delays

Posted in Immigration Planning & Compliance

U.S. embassies and consulates abroad recently suspended issuing any U.S. visas as a result of worldwide technical issues with State Department computer systems. These technical problems cause considerable delays to foreign nationals waiting for their visa to be issued prior to traveling to the United States. The suspension is global, and does not apply to any specific visa category or nationality.

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Even In Colorado, Employees May Be Terminated for Medical Marijuana Use In Violation of Company Drug Policy

Posted in Employee Handbooks & Policies, Employment Litigation

In Coats v. Dish Network, LLC, the Supreme Court of Colorado upheld an employer’s decision to terminate the employment of a quadriplegic employee who worked as a customer service representative and who held a state-issued license to consume medical marijuana. Coats, who had been confined to a wheelchair since his teenage years, tested positive for marijuana during a random drug testing conducted by Dish Network, and although he disclosed that he held a state license to consume the drug, Dish Network terminated his employment for violating the company’s drug policy. Coats argued that the termination of his employment was unlawful, where Colorado law prohibits discriminatory personnel actions for lawful off-duty conduct pursuant to the state’s “lawful activities statute,” Colo. Rev. Stat.  § 24-34-402.5. Continue Reading