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DOL Plans to Repeal Tip-Pooling Restrictions

XpertHR • July 25, 2017
The US Department of Labor (DOL) has announced that it plans to rescind the current Fair Labor Standards Act (FLSA) restrictions on "tip pooling by employers that pay tipped employees the full minimum wage directly."

DOL Asks for Input on New Overtime Rule

XpertHR • July 25, 2017
The US Department of Labor (DOL) is seeking comment from the public, including employers, on its plans to update the Fair Labor Standards Act (FLSA) overtime rules.

Noncompete Agreements Present Challenges for Multistate Employers

XpertHR • July 25, 2017
Every organization wants to protect its assets, and employees are undoubtedly vital to any employer as one of its greatest resources. Thus, an employer will often use a noncompete agreement, which is a type of restrictive covenant designed to limit an employee’s ability to work in similar employment for a competitor.

Who’s Responsible for Providing Disability-Related Workplace Accommodations to Temporary Employees?

Jackson Lewis P.C. • July 25, 2017
Many businesses use temporary workers placed by staffing agencies. But who is responsible when a temporary worker requests a disability accommodation? The staffing agency and the business could both be responsible if they are acting as “joint employers” under the Americans with Disabilities Act (ADA).

Certification of Alleged Misclassified Bakery Distributors Denied due to Predominance of Individualized Issues

Jackson Lewis P.C. • July 25, 2017
Class certification would have been granted in Soares v. Flowers Foods, Inc., 3:15-cv-04918 (N.D. Cal., June 28, 2017), but for the allegedly misclassified independent contractors’ decision to deliver, or not deliver, the goods themselves.

The Triumphant Return of Tip Pooling: DOL Announces Repeal of 2011 Regs

Ogletree Deakins • July 25, 2017
In a welcome sea change for the hospitality industry, the U.S. Department of Labor (DOL) announced on July 20, 2017 that it would repeal the Obama administration’s 2011 regulations that severely curtailed tip pooling. The DOL further announced that, as it works to finalize the repeal, its investigators are barred from enforcing the Obama-era rule.

DHS Allows One-Time Increase in H-2B Guest Worker Visas for Fiscal Year 2017

Ogletree Deakins • July 25, 2017
On July 19, 2017, the U.S. Department of Homeland Security (DHS) and Department of Labor (DOL) increased the numerical limit (or “cap”) on H-2B visas by up to 15,000 additional visas through the end of fiscal year (FY) 2017. The H-2B non-agricultural temporary worker program allows employers to bring foreign nationals (i.e., “guest workers”) to the United States to fill certain jobs of a temporary nature, such as those that are seasonal, peakload, intermittent, or one-time need. This announcement is a result of a federal government funding bill passed by Congress in early May, which included a provision for limited H-2B cap relief.

Groundhog Day: DOL Issues Request for Information on Enjoined Overtime Rule

Ogletree Deakins • July 25, 2017
As Secretary of Labor Alexander Acosta testified in early June, the Department of Labor’s (DOL) Wage and Hour Division (WHD) has issued its request for information (RFI) on the Part 541 overtime regulations that were finalized in 2016. In this RFI, the DOL is seeking new comments, data, and information on an appropriate salary level for bona fide executive, administrative and professional exempt employees pursuant to section 13(a)(1) of the Fair Labor Standards Act (FLSA), as defined in the Part 541 regulations. This RFI will be published in the Federal Register on Wednesday, July 26, 2017.

USDOL To Publish "White Collar" Exemption Information Request

Fisher Phillips • July 25, 2017
A U.S. Department of Labor Request for Information will be published tomorrow morning to seek additional public comment regarding the 2016 compensation revisions in the regulations defining the federal Fair Labor Standards Act's so-called "white collar" exemptions. The agency has now released a preview of the document that will appear in the Federal Register.

Employers Should Be Aware of Pitfalls When Entering into Severance Agreements

Nexsen Pruet • July 25, 2017
Severance agreements in the workplace have evolved considerably during the last twenty-five years. The idea of severance being paid to an employee only where a company has an established severance plan is no longer a reality. Employers often enter into severance agreements with employees for the sole purpose of obtaining a release from the employee of any claims the employee has against the company. In return for the release, the employer pays a “severance” to the employee.

Good Faith Belief in Employee’s Wrongdoing Serves as Defense Against Retaliation Claim

Nexsen Pruet • July 25, 2017
A recent Fourth Circuit Court of Appeals ruling may offer employers in North and South Carolina another defense against an employee’s retaliation claim: No liability for adverse action against an employee based on the employer’s genuine belief that the employee made a false complaint of discrimination.

What To Know About Proposed Changes To Tip-Pooling Rule

Fisher Phillips • July 25, 2017
The U.S. Department of Labor plans to propose, sometime in August, a full rescission of the controversial tip-pooling restrictions that impact employers who pay tipped employees the full minimum wage directly, according to a regulatory agenda published July 20. This news should come as a welcome relief to employers in the hospitality industry, especially those operating in the Ninth Circuit — which includes the states of California, Nevada, Washington, Arizona, Oregon, Idaho, Montana, Hawaii, and Alaska — where a divisive 2016 appellate court decision has operated the last several years to handcuff a substantial number of businesses.

Ashley Madison Data Breach Results in $11.2 Million Settlement

Fisher Phillips • July 25, 2017
On Friday, July 21, users of the “married dating” website, ashleymadison.com, received preliminary approval of an $11.2 million class action settlement.

DOL Seeks Input Before Issuing New Proposed Rulemaking on the White Collar Exemptions

Littler Mendelson, P.C. • July 25, 2017
On July 25, 2017, the Department of Labor's Wage and Hour Division announced its intent to publish a Request for Information (RFI) seeking input from the public before issuing revised proposed overtime exemption regulations to address, most significantly, the minimum salary level required for exempt status. These regulations apply to workers employed in an executive, administrative or professional capacity, and meet specific criteria relating to salary basis, salary level and job duties. The regulations, codified at 29 C.F.R. part 541, are referred to as the “white collar” exemptions.

An Ounce of Data Breach Prevention...Address Attorney-Client Privilege in Your Breach Planning

Jackson Lewis P.C. • July 25, 2017
Data breach “horror” stories have become a new staple in today’s business environment. The frequency of attacks which threaten (or compromise) the security of business networks and information systems continually increases — in the health care space alone (which holds the dubious honor of Most Likely To Be Attacked), a FBI and HHS’ Office for Civil Rights report notes that ransomware attacks occur at the rate of 4,000 per day, a four-fold increase from 2015. Experienced data breach forecasters continue to predict that cyber-attacks will continue to increase in frequency. Although data security and breach response are constantly in the headlines, studies demonstrate that organizations remain unprepared to effectively respond to a data breach.

OSHA Launches New Website for Electronically Filing Injury and Illness Reports

Jackson Lewis P.C. • July 25, 2017
The Occupational Safety and Health Administration’s new electronic portal, the Injury Tracking Application (ITA), where employers can file web-based reports of workplace injuries or illnesses, will be accessible beginning August 1, 2017.

Arbitrator Must Rule on Independent Contractor Status of Uber Drivers in Class-Action Notwithstanding NLRA Bar to Class Action Waivers

Franczek Radelet P.C • July 25, 2017
Last week, a U.S. District Court Judge in Illinois ruled that an arbitration agreement signed by an Uber driver required arbitration on the issue of whether Uber drivers are employees or independent contractors before the driver could proceed with a wage and hour class action lawsuit against Uber. The Court’s decision raises an important exception to current law in the Seventh Circuit, holding that class action waivers in arbitration agreements with employees are invalid and unenforceable under the National Labor Relations Act (NLRA).

Appellate Court Nixes Employee Arbitration Agreements

FordHarrison LLP • July 25, 2017
Overview: By Decision dated July 19, 2017 (the “Decision”), the Appellate Division, First Department (the “First Department”) (which has jurisdiction over Manhattan and Bronx) held that arbitration agreements obligating employees to waive their rights to bring collective disputes, such as class actions regarding wage disputes, were unlawful and unenforceable because they “run afoul of the National Labor Relations Act” (the “NLRA”). Though freely acknowledging that the United States Supreme Court will resolve a similar issue in its October 2017 Term, the Decision currently binds the trial courts in Manhattan and Bronx and has precedential effect for other trial courts throughout New York. The Decision can be appealed to New York’s highest court, the New York Court of Appeals.

The Department of Labor Changes Course on Tip-Pooling Restrictions

FordHarrison LLP • July 25, 2017
Quite a bit of effort goes into making an enjoyable restaurant experience, such as good food, prompt service and, of course, cleanliness. Want to reward the dishwashers for providing you with spotless silverware, expediters for bringing out your food while it is still hot or the chef for cooking the perfect meal by leaving a generous tip? Not so fast. Cooks, expediters and other back-of-the house employees historically have not been able to legally share in the tips that are pooled and distributed among the servers, hosts and others in the front of the house.

New York Employment Law Changes Expand Worker Rights and Employer Obligations

XpertHR • July 25, 2017
When it comes to state and municipal employment legislation, the Empire State and the Big Apple are leading the way in seeking to level the playing field between employers and employees by ensuring workers a fair wage, added leave protections and predictable schedules. Thus, it is critical for New York State and New York City employers to be up to speed and know how these laws will affect the workplace in 2017 and going forward.

California’s Equal Restroom Access Act: 5 Facts You Need to Know

Ogletree Deakins • July 25, 2017
California’s Equal Restroom Access Act, which requires some establishments with single-occupancy restrooms to display signs indicating that the restroom is gender-neutral, has been in effect since March 1, 2017. Assembly Bill No. 1732 (AB 1732), which Governor Jerry Brown signed on September 29, 2016, requires these restrooms “to be identified as all-gender toilet facilities” and that the signs used to designate these restrooms comply with Title 24 of the California Code of Regulations.

Get To Know New Nursing Mothers’ Law For Nevada Workers

Fisher Phillips • July 25, 2017
Although the federal Fair Labor Standards Act (FLSA) already protects nursing mothers from employment discrimination and retaliation while requiring employers to provide them with reasonable break time and a private space to express breast milk, Nevada has taken things a step further. The state just enacted a broad new nursing mothers law for all public and private employers, other than the Department of Corrections, certain small employers, and certain licensed contractors.

Nevada Changes The Game On Non-Compete Agreements

Fisher Phillips • July 25, 2017
The Nevada Supreme Court has long recognized the legality of non-compete agreements between employers and employees. Recently, however, the Nevada state legislature updated the rules on non-compete agreements, specifying how employers should draft their provisions and preventing employers from restricting former employees from providing services to customers or clients. If you use a non-compete agreement in Nevada, it is critical to review that agreement and determine if revisions are necessary.

Nevada Follows Trend By Passing Strict New Wage Disclosure Law

Fisher Phillips • July 25, 2017
Many legitimate reasons exist to explain differences in compensation within a company, such as job qualifications and prior experience. Although employers may wish to maintain the privacy of this information, they could face legal consequences if they prevent employees from discussing their wages. Under the National Labor Relations Act (NLRA), employers cannot discriminate against non-supervisory employees when they discuss their wages as part of a “concerted activity,” regardless of whether they are unionized. Similarly, in 2014, the Obama administration issued an executive order prohibiting discrimination from federal contractors against employees or applicants who inquire about, discuss, or disclose their wages.

What You Need To Know About Nevada’s New Domestic Violence Victims’ Law

Fisher Phillips • July 25, 2017
By the turn of the New Year, employers in Nevada will have an obligation to provide workplace protections to domestic violence victims, including time off from work. Starting January 1, 2018, Nevada employees will be entitled to leave above and beyond what may already be owed to them under the federal Family and Medical Leave Act (FMLA). Employers should begin preparing for this change to the law, revising policies, practices, and training sessions to reflect the change.

Expecting A Big Change: Nevada’s New Pregnant Workers’ Fairness Act

Fisher Phillips • July 25, 2017
The state legislature recently enacted the Nevada Pregnant Workers’ Fairness Act (NPWFA) to expand the scope of protection for employees and applicants. The NPWFA is based on the federal Pregnancy Discrimination Act (PDA), and is also strongly influenced by the American with Disabilities Act (ADA). It applies to employers in the state with 15 or more employees, as well as to state and local governments. Although many portions of the Act are not effective until October 1, 2017, the notice provisions took effect on June 2. If you are not yet familiar with this new law, the time to educate yourself is now.

New York State Appellate Court Finds Arbitration Agreement Requiring Employees to Bring Claims Individually Violates The National Labor Relations Act

Littler Mendelson, P.C. • July 25, 2017
On July 18, 2017, in Gold v. New York Life Ins. Co., New York’s Appellate Division, First Department1 issued a decision that directly contradicted the decision of the U.S. Court of Appeals for the Second Circuit in Sutherland v. Ernst & Young, LLP.2

Washington Enacts Paid Family and Medical Leave Law

Jackson Lewis P.C. • July 25, 2017
All Washington employers must provide paid family and medical leave under a bill signed by Governor Jay Inslee on July 5, 2017.

Former Employees Do Not Have Right to Inspect Personnel Files, Pennsylvania High Court Clarifies

Jackson Lewis P.C. • July 25, 2017
Terminated employees, even those recently separated, are not entitled to inspect their personnel file under the Pennsylvania Inspection of Employment Records Law (the “Act”), according to the Pennsylvania Supreme Court. Thomas Jefferson University Hospital, Inc. v. Pennsylvania Department of Labor and Industry, No. 30 EAP 2016 (June 20, 2017). This decision, authored by Justice David Wecht, puts an end to an employer’s previous conundrum of determining what constitutes “recently” separated when evaluating a former employee’s request to review his or her personnel file.
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