Category Archives: Employment & Consulting Contracts

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Jingle All the Way to the SEC: Employers (Even Privately Held) Under Scrutiny for Language in Separation Agreements Impeding SEC Whistleblower Rule 21F-17

While jingle bells have only just begun to ring, the U.S. Securities and Exchange Commission (SEC) enforcement bells have been ringing steadily throughout year. In recent months, the SEC announced significant settlements with employers for violations of Rule 21F-17 — the SEC’s whistleblower protection rule — as a result of language in non-disclosure agreements, separation … Continue Reading

The Ramifications of College Athletes Being “Employees”

Consider this: the General Counsel of the National Labor Relations Board has opined that some student-athletes at the collegiate level are “employees” for purposes of the right to engage in protected concerted activity, and the U.S. Supreme Court has found that student athletes are entitled to certain compensation. So, if student athletes have new rights … Continue Reading

Employers May Compel COVID-19 Vaccinations, But…

Employers may require employees in the workplace to get a COVID-19 vaccine, according to newly issued guidelines from the EEOC. But employers may not necessarily terminate an employee who refuses. While the vaccine may still be months away for most Americans, employers should prepare now for the issues that will arise, including those relating to … Continue Reading

Department of Labor Final Rule Increases Salary Threshold for Exempt Employees

The U.S. Department of Labor (DOL) issued its long-awaited Final Rule stating that all employees who make less than $684 a week, or $35,568 per year, must earn overtime pay. This new requirement replaces the current threshold of $465 per week, or $23,660 per year, set in 2004.  This increase in the standard salary level … Continue Reading

PEOs, Staffing Companies: Watch Proposed New Joint Employer Rule

Professional Employer Organizations, franchisors, business advisors, and staffing agencies should take a close look at their contracts if the Department of Labor’s proposed new standard for what constitutes a joint employer becomes final. The proposed rule implements a new four-factor test to evaluate whether a joint employer relationship exists. The DOL’s proposed rule reflects the … Continue Reading

Trending: Fair Workweek Laws

“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 … Continue Reading

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

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 … Continue Reading

The Outlook for Non-Compete Agreements in 2019

As employers gear up for 2019, they should be mindful significant reforms in the area of non-compete law that took place in 2018. Although non-competes are widely used and enforceable in the majority of states, there is a growing trend toward limiting the use of non-competes in favor of employee mobility. In recent years, several … Continue Reading

Reducing Risks Associated With Temporary Staffing Agencies

Staffing agencies may provide the solution to a company’s short-term staffing needs. However, clients should not assume they can avoid liability for workplace issues by using a staffing agency; indeed, in some cases, a client is exposed to liability as a result of using a staffing agency. Engaging a staffing agency provides no protection against … Continue Reading

DOL Eases Standards for Unpaid Internships

With summer internships in full swing, it’s high time to revisit the Department of Labor’s recently-revised guidance on unpaid internships.  Guidelines issued in January abandoned the Department’s prior test – which required employers to meet each of six factors — in favor of a seven-factor test granting employers more flexibility to implement unpaid internship programs. … Continue Reading

Conditioning Severance on Post Employment Obligations: Tricky Business

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 … Continue Reading

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 … Continue Reading

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

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” … Continue Reading

Supreme Court Expands Interpretation of Overtime Exemption

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, … Continue Reading

Joint Employer Standard Relaxed – For Now

Business owners, franchisors, contractors, and staffing agencies can breathe a little easier – for the moment – following the National Labor Relations Board’s reversal last month of a controversial Obama-era standard that broadly defined “joint employer.” In the 2015 Browning v. Ferris decision, the NLRB overturned decades of precedent and created an expansive definition of … Continue Reading

DOL Calling for Input: At What Salary Should A Worker Be Exempt From Overtime?

Now that the Department of Labor has gone back to the drawing board with the new regulation that set a $47,476 threshold salary for white collar employees to be exempt from overtime, it would like to hear from you.… Continue Reading

DOL Drops New Salary Regulation

The Department of Labor is abandoning the new salary regulation that set a  $47,476 threshold salary for employees to be exempt from overtime and intends to go back to the drawing board, based on a brief filed by the DOL on June 30, 2017. The regulation, which more than doubled the current salary threshold, would … Continue Reading

DOL: “Joint Employer” and “Independent Contractor” Guidance Out and Wage and Hour Opinion Letters In

On the heels of withdrawing published interpretations of the concepts of “joint employer” and “independent contractor,” the Secretary of Labor announced yesterday that it will reinstate the issuance of opinion letters. Opinion letters are official, written opinions by the Wage and Hour Division that explain how a law applies to specific sets of facts. In … Continue Reading

States May Step Into Void Created by Demise of DOL’s Overtime Rule

Since the Department of Labor announced the new overtime rule last May, we have been closely following its rocky implementation in a series of posts. Presently, the rule – which would render an estimated 4 million workers eligible for overtime by effectively doubling the salary threshold for exempt employees to $47,476 – remains stayed by … Continue Reading

The New Salary Regulations: The Saga Continues

While employers took solace from the Nov. 22 nationwide preliminary injunction which blocked implementation of a controversial rule increasing the salary threshold for employees to be exempt from overtime, the battle is not over. The Department of Labor filed its notice of appeal December 1, the same day the new salary regulations were to take … Continue Reading

Catch-22 for Franchisors: The Joint Employment Dilemma

As government agencies steadily expand the concept of  joint employment, franchisors increasingly find themselves in a difficult position. Since August 2015, when the NLRB ruled in Browning-Ferris that entities with the ability to exercise direct or indirect control over workers can be joint employers (prior blog post here), franchisors have experienced increased scrutiny from both federal … Continue Reading

Employers Can Be Thankful: New Salary Regulation Delayed

Providing employers with a piece of good news, a Texas court has issued a nationwide preliminary injunction that delays the December 1 implementation of the controversial final rule that increased the salary level for exempt employees to $47,476, more than double what it had been. The court found that the 21 states challenging the rule showed both … Continue Reading

Employers Beware: SEC Continues Offensive on Employment Agreements That Inhibit Whistleblowers

Risk Alert (literally)! Standard provisions in employment agreements, severance agreements and policies may run afoul of the SEC’s whistleblower regulations. In the wake of several highly publicized enforcement actions by the SEC, on October 24, 2016 the Office of Compliance Inspections and Examinations issued a “Risk Alert” highlighting various contract and policy provisions the SEC … Continue Reading
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