Employers Beware: Wage Theft Soon to be a Felony in Colorado and Minnesota

By Christopher J. Eby on Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

Recent legislation in Colorado and Minnesota imposes harsh criminal penalties—including potential felony convictions—for the failure to pay wages.  To limit their exposure under these strict new laws, employers with operations in either state should familiarize themselves with these upcoming changes.

Colorado Increases Criminal Penalties under the Wage Claim Act

On May 16, 2019, Colorado Governor Jared Polis signed HB 19-1267, into law, addressing penalties for failure to pay wages.  While Colorado currently imposes misdemeanor penalties for nonpayment of wages, the new law classifies that nonpayment as theft under Colorado law, punishable by a felony when the amount of theft exceeds $2,000.  Penalties vary based on the amount of the theft: Continue Reading

Sanctuary Cities in the United States: Sinking or Swimming?

By Rachel L. Perez on Posted in Immigration Planning & Compliance

U.S. Immigration and Customs Enforcement (ICE) is one step closer to eliminating protections availed in so-called sanctuary cities. On May 6, 2019, the federal immigration authority launched a new program that encourages local law enforcement to arrest foreign nationals in cities that have chosen to be a safe haven for immigrants. This program, which debuted in Largo, Florida, comes on the heels of a controversial bill passed by the Florida legislature prohibiting sanctuary cities in the sunshine state. According to ICE Director, Mathew Albence, the agency’s latest initiative was put forth to promote public safety and protect vulnerable populations from violence, drugs and gang activity. While opponents of sanctuary cities point out crimes committed by illegal immigrants, sanctuary jurisdictions argue that enforcing federal immigration laws through state authorities will deteriorate cooperation between immigrant communities and local law enforcement. Continue Reading

DOL and NLRB Agree: Gig Economy Workers Are Contractors, Not Employees

By Raymond J. Berti on Posted in Wage & Hour

According to recent guidance issued by the DOL and NLRB, workers in the so-called “gig,” “on-demand,” or “sharing” economy are independent contractors, not employees. This represents a significant departure from Obama-era policy and is expected to have significant consequences for both employers and workers in that sector. Continue Reading

Trending: Fair Workweek Laws

By Dana N. Berber on Posted in Employee Handbooks & Policies, Employment & Consulting Contracts, Wage & Hour

“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

U.S. Supreme Court Rules that Ambiguous Arbitration Agreements Do Not Authorize Class Arbitration

By Jeffrey A. Kimmel and Paul J. Rutigliano on Posted in Employment & Consulting Contracts, Employment Litigation

Ambiguous 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

By Paul J. Rutigliano on Posted in Medical & Other Leaves

Employers 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

By Steven P. Gallagher on Posted in Disability, Medical & Other Leaves, Wage & Hour

Job 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

By Amy M. Gaylord on Posted in Labor Relations

Employers 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

By Erin M. O'Neal and Christopher John Shin on Posted in Employee Benefits

A 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

By Rachel L. Perez on Posted in Immigration Planning & Compliance

As 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

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