New Paid Leave Laws Extend to Domestic Violence

Posted in Employee Handbooks & Policies, Medical & Other Leaves

A new breadth of employee laws are sweeping the nation, and this time they are directed at providing employees paid leave to take care of themselves or a loved one in a domestic violence situation.

The United States has a very serious domestic violence problem. On average, nearly 20 people per minute are physically abused by an intimate partner in the United States. During one year, this equates to more than 10 million women and men.

To help combat these horrifying statistics, laws have been, and are continuing to be, enacted all over the country to grant domestic violence and sexual assault victims leave to recover, take steps to escape the situation, or seek legal remedies. Previously most of these state laws only permitted employees to take unpaid leave. However, increasingly, the new wave of paid sick leave laws are being amended to include paid safe leave. In addition, states that do not already have paid sick leave are starting to pass paid sick and safe leave as a joint measure.

A case in point: the NYC Paid Safe and Sick Leave Law took effect last month. NYC made headlines when it became one of the first major cities on the east coast to permit employees to take up to 40 hours a year of paid sick leave. NYC now permits these hours to be used for paid safe leave as well. Under the NYC law, employees are permitted to use this time to seek legal and social services assistance or take other safety measures if the employee or a family member may be the victim of any act of domestic violence or unwanted sexual contact, stalking, or human trafficking. Continue Reading

The Challenges of Poor FMLA Certifications

Posted in Medical & Other Leaves

Did that FMLA certification arrive illegible? Is the information provided too vague? Are the responses to the questions internally inconsistent? Do you suspect that it wasn’t filled out by a healthcare provider at all?

Employers navigating the FMLA maze – especially those who outsource the function – may not get the information they need in the certification. Many simply accept what they receive and designate the leave as FMLA without sufficient documentation. But that can hamper an employer’s legitimate efforts to work with an employee who has a medical condition down the road. Yes, it’s challenging, but it’s worth making sure the FMLA documentation you receive meets the statutory requirements. Continue Reading

Conditioning Severance on Post Employment Obligations: Tricky Business

Posted in Employee Handbooks & Policies, Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Employment Litigation

Employers often want to be sure that departing employees won’t disclose confidential business information or make disparaging remarks about the company, and therefore include such obligations in severance agreements. But there are risks, unless the provisions are carefully tailored to account for recent legal developments.

For example, in Baylor Univ. Med. Ctr., an Administrative Law Judge found that Baylor violated the National Labor Relations Act by offering an employee $10,000 severance in exchange for executing a severance agreement with problematic clauses. The Act protects employees who engage in protected concerted activity to address work-related issues. The National Labor Relations Board provides these examples of protected concerted activity: “talking with one or more co-workers about your wages and benefits or other working conditions, circulating a petition asking for better hours, participating in a concerted refusal to work in unsafe conditions, and joining with coworkers to talk directly to your employer, to a government agency, or to the media about problems in your workplace.” Continue Reading

#EqualPayMeToo

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Investigations & Audits, Employment Litigation

The #MeToo movement not only has highlighted harassment in the workplace; it also has prompted courts and lawmakers to take a closer look at pay equity.

The EEOC warned employers about “[e]nsuring equal pay protections for all workers” when it identified this area as one of its priorities in its Strategic Enforcement Plan for Fiscal Years 2017-2021, and it is following that warning with enforcement actions. Last month, the EEOC entered into a $2.66 million settlement with the University of Denver’s Sturm College of Law following allegations that female law professors were paid less than their male counterparts. The settlement required the law school to, among other things, revise its EEO and discrimination policies, hire an independent labor economist to conduct an annual pay equity study, and hire an independent consultant to evaluate the law school’s compliance with its EEO policies and recommend modifications to the law school faculty compensation’s system as necessary. And in March of this year, a North Carolina federal court approved the Family Dollar Store’s bid to end a lengthy lawsuit by approving a $45 million settlement that the company reached with female store managers who alleged that the company had paid them less than similarly situated male store managers. Continue Reading

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

Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Employment Litigation

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

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

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

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

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?

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

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