The Nation’s Employers Just Got PAID

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

Employers Relying On H-4 Dependent Spouse Visas Better Move Fast as April 1 Lottery Looms

By Rachel L. Perez on March 19, 2018 Posted in Immigration Planning & Compliance

Proposed changes to the rule authorizing employment for H-4 status holders could spell an increase in H-1B petitions this upcoming fiscal year, and ultimately, increased sponsorship costs for employers. Consequently, employers with workers who presented an H-4 EAD card as their I-9 employment eligibility documentation are strongly advised to consider sponsoring such workers who qualify for H-1B status in the upcoming fiscal year quota. Employers can submit H-1B petitions on behalf of eligible workers in H-4 status during the first week of April for entry in the FY2019 lottery selection process. Employers must be prepared to submit their paperwork to USCIS during the first five business days of April, which takes place this year from Monday, April 2 to Friday, April 6, 2018. Employers wanting more information on H-1B eligibility requirements and the FY2019 lottery season can click here for further details. Continue Reading

Joint Employer Standard: Whiplash!

By Scott T. Silverman on March 8, 2018 Posted in Employment Counseling & Workplace Claims Prevention, Labor Relations

In a surprising move, the National Labor Relations Board has overturned its recent decision that had overruled an expansive joint employer standard set forth by the previous Obama-era Board. So, at least for the time being, where an entity has reserved the right to control employees with another entity – even if that control was never exercised – the Board will continue to find a joint employment relationship under the National Labor Relations Act.

The “joint employer” concept is of vital importance in two major areas regulated by the Board: The first concerns unfair labor practice charges: Who may be held jointly liable for engaging in unfair labor practices? The second concerns collective bargaining/economic activity obligations: Who has the duty to bargain? Who is bound by the collective-bargaining agreement? Who may be subject to strikes, boycotts and picketing? Continue Reading

Another Circuit Says Title VII Prohibits Sexual Orientation Discrimination

By Sarah J. Lis on March 1, 2018 Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

A second federal appellate court has ruled that Title VII of the Civil Rights Act prohibits employers from discriminating against employees based on their sexual orientation. The ruling is in line with the EEOC’s interpretation of the law, but at odds with the interpretation by the current administration’s Department of Justice.

The case, Zarda v. Altitude Express, Inc., involved a skydiving instructor who was fired after his employer received a complaint that he inappropriately touched a female client during a tandem skydive and then disclosed his sexual orientation to excuse his behavior. The skydiving instructor denied inappropriately touching the client, but admitted he told the client he was gay, simply to preempt any discomfort she may have felt being strapped to him for the tandem skydive. The skydiving instructor alleged he was fired solely because of his sexual orientation, which he maintained violated Title VII’s prohibition on discrimination based on sex. The employer argued that Title VII does not cover, and was not intended to cover, sexual orientation discrimination because, among other things, it only refers to discrimination “because . . . of sex.” Continue Reading

Is The EEOC’s Background Check Guidance In Jeopardy?

By Brittany Buccellato on February 21, 2018 Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation

Employers that have been frustrated with the EEOC’s position on how they can use arrest and conviction records, take note: earlier this month, a federal court in Texas enjoined the EEOC and the Attorney General of the United States from enforcing the EEOC’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” (the Guidance) against the State of Texas. The Guidance, which was issued in April 2012, requires an employer to make an individualized assessment when using a criminal record to disqualify an employee from employment. When the Guidance was first issued, many complained that it was issued without notice and the opportunity for public comment. Continue Reading

Technical Violations of Statutes May No Longer Be Enough

By Christopher R. Lepore on February 12, 2018 Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation

“Have you been injured?” No longer just a query for auto accident victims, plaintiffs must increasingly be able to answer “yes” to that question before bringing suits for violations of statutory rights.

Once upon a time, a technical violation was enough. However, following the Supreme Court’s decision in Spokeo v. Robbins (2016), courts have been increasingly reluctant to permit legal claims, including under employment-related statutes, for technical statutory violations. Instead, as discussed below, plaintiffs must often demonstrate they were actually injured before their lawsuit proceeds.

To have “standing” to bring a claim, essentially a person must be able to demonstrate that he/she has a personal stake in the outcome of the controversy sufficient to stand before the court. In Spokeo, the Supreme Court detailed the requirement that an injury be “concrete” and “particularized” to establish “standing.” The Court found that, although an injury need not be tangible, it must be “real,” and not “abstract.” Continue Reading

New NLRB Decisions Favor Employers

By Thomas Y. Mandler on January 25, 2018 Posted in Labor Relations

With the change to a Republican President and the appointment of new NLRB members, the expectation that more pro-employer decisions will be issued has begun. Several NLRB decisions have re-established prior labor law precedents that were overturned by the Obama era NLRB. A prime example of this is the recent decision involving Raytheon Network Centric Systems that restored the 50-year-old precedent regarding the requirement to negotiate certain changes with a union. Continue Reading