U.S. Supreme Court Rules That Class Action Waivers Are Enforceable

Employers may require employees to enter into arbitration agreements that waive such employees’ ability to participate in a class or collective action lawsuit, the U.S. Supreme Court ruled this week. In a long-awaited decision that represents a significant victory for employers, the Court in Epic Systems Corp. v. Lewis held that such agreements do not violate the National Labor Relations Act and are enforceable.

The employees in the case argued that the NLRA statutorily prevents employees from waiving their right to assert claims as a class or collectively, thus falling within the “saving clause” of the Federal Arbitration Act (FAA), which permits courts from enforcing arbitration agreements that are illegal. At the outset, Justice Neil Gorsuch, writing for the Court’s majority in a 5-4 decision, rejected the employees’ contention, reasoning that the “saving clause” recognizes only defenses that apply to “any” contract, such as fraud, duress or unconscionability. In reaching this holding, the Court emphasized the FAA’s mandate that courts generally enforce, not override, the terms of arbitration agreements. Continue Reading

SOS: Students Stuck Outside

By Rachel L. Perez on May 22, 2018 Posted in Immigration Planning & Compliance

A new and unexpected policy change will cause problems for students who plan to process visa applications from abroad. Foreign nationals who overstay their student visas could be barred from re-entering the U.S. under a draft policy memorandum issued by the U.S. Citizenship and Immigration Services (USCIS) on May 11. The new policy, which will supersede existing policy that’s been in place for nearly two decades, tightens rules for foreign students and exchange visitors by changing how immigration authorities calculate “unlawful presence” in the United States. The proposed policy will count significantly more days as time illegally spent in the United States, and will result in a surge of students violating their terms of admission and becoming illegally present in the United States. The policy is set to take effect on August 9, 2018. Continue Reading

DOL Again Offers Opinion Letters to Employers

By Megan M. Kokontis on May 15, 2018 Posted in Employment Counseling & Workplace Claims Prevention, Medical & Other Leaves, Wage & Hour

Employers will once again have another source of guidance on wage and hour issues from the U. S. Department of Labor, which last month reinstated the practice of issuing opinion letters. The DOL stopped issuing opinion letters during the Obama administration, and instead switched to a practice of offering Administrator’s Interpretations (AI), which have broader applicability. Employers, who can rely on opinion letters to establish that they acted in good faith in cases arising under Fair Labor Standards Act, were discouraged by the move. However, after Trump took office last year, the DOL announced that it would resume the practice of issuing opinion letters, and in fact, reinstated 17 letters that were written but never sent at the end of the George W. Bush administration.

The DOL has now issued its first set of opinion letters since 2009. The letters provide opinions on three topics – whether 15-minute rest breaks requested by a doctor are covered by the FMLA and are compensable under the FLSA; whether travel time under certain conditions for hourly technicians is compensable under the FLSA; and whether lump-sum payments from employers to employees are earnings for garnishment purposes under Title III of the Consumer Credit Protection Act. Continue Reading

Say Goodbye to Independent Contractors: The New “ABC” Test of Employee Status

By Jeffrey S. Horton Thomas and Steven P. Gallagher on May 7, 2018 Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Employment Litigation

The circumstances under which California businesses may classify workers as independent contractors rather than employees under California wage laws have been greatly narrowed by a decision the California Supreme Court issued April 30, 2018. The landmark decision in the case known as Dynamex presumes that all workers are employees, sets out a new three-part “ABC” test businesses must satisfy in order to classify workers as independent contractors, and, as one expects in California, places the burden on the business, not the worker, to prove that any particular worker is properly classified as an independent contractor. The decision has immediate ramifications for businesses throughout California. The decision is also likely to influence the development of the law in jurisdictions outside California. Continue Reading

#HimToo

By Sasha B. Segall on May 3, 2018 Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention

The headlines may feature the names of powerful businessmen and stars who’ve been accused of sexual harassment, but employers should remember the perpetrator may not always be a man. Powerful women can be harassers, too. And there is the key: harassment is more about power than gender.

Abigail Saguy, a Professor of Sociology and Gender Studies at UCLA who has studied sexual harassment for decades, argues that one of the most fundamental components of harassment is not necessarily gender, but the power dynamic created by managerial responsibilities and authority. These managerial positions have historically been held by more men than women, thus providing for a greater likelihood that the aggressor be male. But this situation is rapidly changing. Continue Reading

Big Brother to Review Visa Applicants’ Social Media History?

By Rachel L. Perez on April 23, 2018 Posted in Immigration Planning & Compliance

Handing over access to your social media account might be the next big move in U.S. immigration law. In a formal notice issued on March 30, 2018, the Department of State advised that it plans to require nearly all visa applicants to the U.S. to submit five years of social media handles for specific platforms identified by the government, with an option for foreigners to voluntarily turn over aliases associated with any other social media network not explicitly required by the government which have been used in the five years prior.

According to the notice published in the Federal Register, the State Department is considering revising its electronic visa registration system to require visa applicants to answer a series of questions aimed at eliciting social media history. The Electronic Application for Immigrant Visa and Alien Registration (DS-260)—which is required for nearly all immigrant visa applicants to obtain immigration benefits in the U.S.—is an online application administered by the Department’s Bureau of Consular Affairs. It is used to collect biographical information from individuals seeking legal permanent residency in the U.S. Consular officials use the data collected in the DS-260 to determine an applicant’s eligibility for a green card at the time of a visa interview. Continue Reading

The Nation’s Employers Just Got PAID

By Shayla N. Waldon on April 11, 2018 Posted in Employment Counseling & Workplace Claims Prevention, Employment Investigations & Audits, Employment Litigation, Wage & Hour

Employers who would like to work with the Department of Labor to correct potential wage and hour violations before they get sued may get their wish: the DOL has launched a Payroll Audit Independent Determination (PAID) program. The agency has invited all employers covered by the Fair Labor Standards Act to consider participating in this six-month pilot program. However, is it worthwhile?

To participate in PAID, the DOL still requires the employer to undertake its own internal assessment of its compensation practices and how those practices have been applied to employees. For instance, if an employer suspects that employees have worked off the clock, the employer first must determine: (i) which employees are affected; (ii) the time period for which the employees’ hours are short; and (iii) the amount of back wages owed to the affected employees. Then, prior to making payment, the employer submits the information for each such violation to the DOL for the agency to determine whether it agrees with the calculations. The agency will examine the employer’s records to verify the information and the calculations submitted, and review whatever other information it deems necessary to confirm the back wages due, and then issue a summary of unpaid wages. Employers will need to have their checkbooks ready, as all back wages must be paid by the end of the next full pay period after receiving the summary of unpaid wages. Continue Reading

Supreme Court Expands Interpretation of Overtime Exemption

By Thomas Y. Mandler on April 5, 2018 Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Employment Litigation, Wage & Hour

Employers may have a bit more flexibility in determining which employees are exempt from overtime following a U.S. Supreme Court ruling issued this week that specifically rejected the decades-old principle that exemptions under the Fair Labor Standards Act (FLSA) should be “narrowly construed.” In a 5-4 decision, the Supreme Court ruled in Encino Motor Cars, LLC v. Navarro that an automobile dealership need not pay its service advisors time and one-half for all hours worked in excess of forty in a work week. In deciding that service advisors were exempt employees under the FLSA, the Court rejected the U.S. Department of Labor regulation that previously required service advisors to be paid overtime. Continue Reading

Department of Health and Human Services Proposes New Rule For Healthcare Workers In The Name of Religious Freedom

By Megan M. Kokontis on April 2, 2018 Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Litigation

Healthcare employers take note: the Department of Health and Human Services (“HHS”) has issued a proposed rule that, if passed, will allow healthcare workers who object to performing certain medical procedures like abortions and gender reassignment surgeries to refuse to perform such procedures on the grounds of religious freedom. If passed, the proposed rule would apply to over 700,000 healthcare facilities, including hospitals, dentists’ offices, pharmacies, ambulance services and others that receive federal funding. Again, if the rule is passed, it would require healthcare entities receiving federal grants to certify their compliance with the law. The proposed rule would also require healthcare entities to notify employees of the law and allow the Office of Civil Rights to initiate a compliance review of any entity receiving federal funds to determine whether the employee notice appears in appropriate places, like employee handbooks and employment applications. Continue Reading

Transgender Rights Trump Religious Rights in Sixth Circuit Case

By Sarah J. Lis on March 26, 2018 Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Litigation

Title VII’s protections against sex discrimination extend to transgender workers, even in the face of a challenge based on the employer’s religious rights, a federal appellate court has held. A funeral home violated Title VII when it terminated its funeral home director after she disclosed that she planned to transition from male to female and thus wanted to dress in women’s clothing while at work, the Sixth Circuit Court of Appeals ruled in Stephens v. R.G. & G.R. Harris Funeral Homes, Inc.

The funeral home owner, a devout Christian, argued the federal Religious Freedom Restoration Act (“RFRA”), which prohibits the government from substantially burdening an individual’s religious practice, protected him from Title VII liability. The Sixth Circuit Court of Appeals rejected that argument, essentially holding that the owner of the funeral home could not use his religious beliefs as a reason to engage in sex discrimination. Continue Reading