“Fair workweek” laws are sweeping the nation, bringing new challenges for employers. Also referred to as “predictable scheduling,” “advanced scheduling,” or “secure scheduling laws,” these laws typically require larger employers in restaurant and retail industries to provide employees with advanced schedules and “predictability pay” if schedules are changed after a certain time period before an employee’s shift. Continue Reading
Employers Must Report Pay Data and Hours Worked
Posted in Employment Investigations & AuditsFor the moment, employers with 100 or more employees should plan to report pay data and hours worked by race, sex, and ethnicity for employees in each of 10 job categories, as a result of a recent court ruling. That ruling requires that the data for 2017 and 2018 payrolls be reported by September 30, 2019 as part of the revived Component 2 of the annual EEO-1 Report. However, on May 3, 2019 the Department of Justice appealed both the ruling that set the September 30 deadline and the earlier court ruling that revived the EEO-1 pay and hours data requirement. If upheld, these decisions will have a significant impact on employers. In addition, employers will face heightened investigatory and enforcement activity due to the EEOC’s access to detailed pay data. Continue Reading
U.S. Supreme Court Rules that Ambiguous Arbitration Agreements Do Not Authorize Class Arbitration
Posted in Employment & Consulting Contracts, Employment LitigationAmbiguous language in an arbitration agreement is not a sufficient basis for concluding a party has agreed to class arbitration, the U.S. Supreme Court ruled last week. In Lamps Plus, Inc. v. Verela, the Court held that, under the Federal Arbitration Act (“FAA”), courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide, rather than individual, basis. Instead, class arbitration must be expressly authorized in the contract. Continue Reading
FMLA Qualifying Leave Must Be Under FMLA
Posted in Medical & Other LeavesEmployers cannot permit employees to use PTO or other paid leave prior to using unpaid FMLA leave for an FMLA qualifying condition, according to a new Department of Labor Opinion Letter. The Opinion Letter also provides that employers cannot designate more than 12 weeks of leave per year as FMLA (or 26 weeks per year if leave qualifies as FMLA military caregiver leave). Continue Reading
Job Descriptions Can Be A Shield or Sword
Posted in Disability, Medical & Other Leaves, Wage & HourJob descriptions can be a shield or a sword for employers. In addition to setting clear job expectations, informing candidates of what the job entails, and providing a framework for evaluations, they are often used in litigation arising from workplace claims.
Job descriptions can be critical in litigating actions under the Fair Labor Standard Act, the Americans with Disabilities Act and the FMLA. Most employers know job descriptions are important, but are you doing them right? Let’s look at how they can be used in different workplace claims. Continue Reading
NLRB Weighs in on Confidentiality, Personal Use of Company Email, and Other Workplace Policies
Posted in Labor RelationsEmployers should be careful about designating Employee Handbooks confidential as, according to the National Labor Relations Board’s advice division, that would be unlawful. That advice was contained in one of five memoranda issued by the advice division last month. While not binding on the Board and not official Board precedent, advice memoranda provide guidance to the Board’s Regional Offices on how to handle difficult and novel issues that arise. The recent memoranda cover a variety of workplace issues and apply to both unionized and non-unionized worksites. While the advice division found that particular handbook confidentiality rule to be unlawful, it greenlit several other work rules providing employers with useful guidance when drafting and updating their employee handbooks. Continue Reading
Tread Carefully – DC Federal Judge Weakens Association Health Plan Regulation
Posted in Employee BenefitsA recent ruling by the United States District Court for the District of Columbia calls into question the recently expanded regulations allowing small employers to band together to establish Association Health Plans. This development should be monitored closely by employers and employer organizations currently sponsoring, or considering sponsoring, these plans. Continue Reading
USCIS Introduces Two-Phased Approach to Premium Processing for FY 2020 H-1B Cap Cases
Posted in Immigration Planning & ComplianceAs of April 1, 2019, U.S. employers requesting a change of status for H-1B hopefuls should request Premium Processing by concurrently filing visa petitions with Form I-907, Request for Premium Processing Service, available here. But don’t expect the Federal Immigration Service to begin working immediately. In a statement released on March 19, 2019, the U.S. Citizenship and Immigration Services (“USCIS”) announced that “Premium Processing” – a 15-day expedited service available in exchange for a $1,410 filing fee – will not immediately begin for H-1B cap cases this fiscal year. While USCIS plans to formally notify the public when Premium Processing begins for lottery (“cap-subject”) H-1B visa petitions, employers should expect Premium Processing to commence for H-1B cases requesting a change of status by no later than May 20, 2019. Employers looking to hire foreign national students who are currently inside the U.S. and maintaining lawful immigration status are expected to benefit most from the Immigration Services’ latest procedural shift. Continue Reading
Age Discrimination Claims Limited for Job Applicants
Posted in Employment Discrimination Harassment & RetaliationA second federal appellate circuit has ruled that the Age Discrimination in Employment Act (the ADEA) does not apply to job applicants’ claims that a policy or practice has a disparate impact on older individuals. In so holding, the Seventh Circuit Court of Appeals, covering Illinois, Indiana, and Wisconsin, joins the Eleventh Circuit, covering Florida, Georgia, and Alabama.
However, while employers in those states may now successfully argue that job applicants’ disparate impact claims cannot be brought under the ADEA, the same is not necessarily true of state laws. It is possible that more plaintiffs will now simply pursue such claims in state court. Continue Reading
Court Ruling Revives Pay Data EEO-1 Reporting Requirements
Posted in Wage & HourEmployers may need to begin collecting pay and hours data to report on EEO-1 forms, now that a federal district judge revived the controversial requirement put in place during the Obama administration. During that administration, the EEO-1 form was revised to require employers with 100 or more employees to report earnings and hours worked within 12 pay bands, in addition to reporting race, ethnicity, and sex. In August of 2017, the Office of Management and Budget (“OMB”) stayed the requirement, but a lawsuit was brought by The National Women’s Law Center and the Labor Council for Latin American Advancement in the federal district court in Washington D.C. On March 4, 2019, the federal district judge vacated the stay, finding that OMB did not sufficiently justify its rationale for blocking the rule. The judge then went a step further, pointedly stating that “OMB’s deficiencies were substantial, and the court finds it unlikely that the government could justify its decision on remand, despite its assertion that ‘OMB could easily cure the defects in its memorandum by further explanation of its reasoning.’” Continue Reading
