Heads Up: Employers Must Use Yet Another New I-9 Form

Posted in Immigration Planning & Compliance

Employers need to switch to yet another new I-9 Form on or before September 18, 2017. The latest update–the second revision to the I-9 since the beginning of the Trump Administration—does not reflect any significant substantive changes. But employers who fail to timely implement use of the new form risk being fined for non-compliance. Continue Reading

DOL Calling for Input: At What Salary Should A Worker Be Exempt From Overtime?

Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Employment Investigations & Audits

Now that the Department of Labor has gone back to the drawing board with the new regulation that set a $47,476 threshold salary for white collar employees to be exempt from overtime, it would like to hear from you. Continue Reading

Predictive Scheduling and the Fight for a “Fair Workweek”: What Employers Need to Know

Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

Retailers and fast food companies in particular should be aware of the growing push for “fair workweek” legislation at the city, state, and federal levels. In just the past few years, over a dozen states and cities have considered enacting such laws, which are designed to ensure that employees are given consistent, predictable schedules. (They have therefore also been termed “predictive scheduling” laws.) To date, such legislation has been passed in San Francisco; Seattle; Emeryville, California; New York City; and, most recently, Oregon, where the bill is currently awaiting the governor’s signature. Continue Reading

DOJ About-Face: Supporting Class Action Waivers, Parting Ways with the NLRB

Posted in Employment Litigation, Labor Relations

The Department of Justice (DOJ) has just switched sides in a trio of high profile arbitration cases now pending before the Supreme Court, joining with the employers to argue that the National Labor Relations Board’s (NLRB’s) ban on the use of class action waivers in arbitration agreements oversteps its authority and is misguided. Continue Reading

Preparing for the Unknown: Open Enrollment 2017

Posted in Employee Benefits

With Open Enrollment season just around the corner, employers have been hoping for answers regarding the direction of health insurance under the Trump Administration. However, it’s looking like clarity is a long way off. Despite the lack of certainty, there are a handful of important issues employers should keep in mind:

Future of the Affordable Care Act

Although the Trump administration has been vocal regarding its intent to “repeal and replace” the Affordable Care Act (ACA), efforts to do so have been slow going. The House of Representatives narrowly passed the American Health Care Act on May 4, 2017, however, efforts to pass a similar bill in the Senate have hit major roadblocks. Continue Reading

DOL Drops New Salary Regulation

Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Wage & Hour

The Department of Labor is abandoning the new salary regulation that set a  $47,476 threshold salary for employees to be exempt from overtime and intends to go back to the drawing board, based on a brief filed by the DOL on June 30, 2017.

The regulation, which more than doubled the current salary threshold, would have made an estimated 4 million more workers eligible for overtime. While a Texas court last November enjoined the new rule from taking effect and the DOL appealed the ruling, many employers began re-assessing their exempt workers’ salaries and making adjustments. The Texas court said that Congress intended the “white collar exemptions” – executive, administrative and professional – to apply to employees doing actual executive, administrative and professional duties, without reference to a minimum salary level.   The court further concluded that the DOL exceeded its delegated authority and ignored Congress’s intent “by raising the minimum salary level such that it supplants the duties test.”

Notably, the DOL did not announce its intent to withdraw the regulation via press release.  Instead, in a brief filed on June 30, 2017 in the pending appeal, the DOL asked the appellate court not to address the validity of the specific salary level set by the 2016 final rule.  The DOL requested that the appellate court address only the threshold legal question of the DOL’s statutory authority to set a salary level, arguing the court should reverse the November 2016 preliminary injunction and affirm the DOL’s ability to include a salary level test for the FLSA white collar overtime exemptions.  In its brief, the DOL stated that it “has decided not to advocate for the specific salary level ($913 per week) set in the final rule at this time and intends to undertake further rulemaking to determine what the salary level should be.”

For now, employers must wait to see whether the court will find that DOL has the authority set a minimum salary threshold and if it does, what that threshold will be.

DOL: “Joint Employer” and “Independent Contractor” Guidance Out and Wage and Hour Opinion Letters In

Posted in Employment & Consulting Contracts, Employment Litigation, Wage & Hour

On the heels of withdrawing published interpretations of the concepts of “joint employer” and “independent contractor,” the Secretary of Labor announced yesterday that it will reinstate the issuance of opinion letters. Opinion letters are official, written opinions by the Wage and Hour Division that explain how a law applies to specific sets of facts. In 2010, the Obama administration discontinued the issuance of opinion letters and replaced them with Administrator Interpretations, which provided only informal guidance. The change back to opinion letters will be welcomed by employers who may rely on an opinion letter to establish a good-faith defense in wage and hour claims. Additionally, the agency created a website where the public can search to see if existing opinion letters already answer their questions, or alternatively, request an opinion letter. Continue Reading

R-E-S-P-E-C-T in Your Workplace

Posted in Employment Discrimination Harassment & Retaliation

Are racial issues, religious differences, and gender norms creating tension in your workplace? Are the caustic exchanges so evident in news coverage today starting to crop up in the office? Are employees complaining of discriminatory treatment on social media? While it may feel like stepping into a hornet’s nest, employers cannot sit silently by and hope for the best. Employers can and should get ahead of these issues now. Continue Reading