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DOL Issues Temporary Enforcement Policy Regarding ERISA Fiduciary Rule

XpertHR • March 21, 2017
The US Department of Labor (DOL) has issued a temporary enforcement policy relating to its recently proposed 60-day extension of the applicability date of the final rule defining who is a fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code, and the applicability date of the related prohibited transaction exemptions - the Best Interest Contract Exemption (BICE) and the Principal Transactions Exemption (PTE).

Fear of Failure – Terminating Employees with Extensive FMLA and non-FMLA Absences

Jackson Lewis P.C. • March 21, 2017
It’s a scenario that frustrates many employers. An employee with extensive intermittent FMLA absences, possibly including absences for different covered reasons, is also absent for many unspecified or unprotected reasons which lead to progressive discipline. The employee’s absences eventually reach the point of warranting termination and the employee does not provide additional medical information to address the unprotected absences. The employer is prepared to proceed with termination but is concerned about whether it did enough to track protected absences and communicate with the employee to avoid FMLA interference and retaliation claims.

Federal Appeals Court Upholds Dismissal of Public Employee For Failing Random Drug Test

Jackson Lewis P.C. • March 21, 2017
The Unified Government of Wyandotte County/Kansas City, Kansas did not violate a public employee’s Fourth Amendment rights by requiring the employee to submit to a random drug test or by terminating his employment when he tested positive for cocaine, according to a recent decision by the U.S. Court of Appeals for the Tenth Circuit. Washington v. Unified Government of Wyandotte County, Kansas, 847 F.3d 1192 (10th Cir. 2017).

Unions Winning More Elections, But Organizing Fewer New Workers

Jackson Lewis P.C. • March 21, 2017
Unions won 72% of all representation elections conducted by the National Labor Relations Board in 2016, and 74% when the election involved a small unit of 49 workers or less, according to a Bloomberg BNA report based on NLRB data. These percentages are a four-year high for unions. At the same time, fewer workers were organized — 57,800 (lowest in four years), down from 63,300 new members in 2015.

Supreme Court Uses Labor Case To Again Stifle Presidential Power

Fisher Phillips • March 21, 2017
In a decision released today, a 6 to 2 majority of the Supreme Court restricted the president’s power to fill high-level administrative positions without the Senate’s advice and consent, handing a victory to an employer in a labor dispute. The decision has wide-ranging implications for this and future presidents’ ability to choose nominees for important positions in administrative agencies such as the National Labor Relations Board (NLRB), and continues a recent trend of limiting presidential power recently seen in the Court’s June 2016 immigration decision.

Latest Misclassification Settlement Fails To Lyft Sharing Economy Companies

Fisher Phillips • March 21, 2017
Late last week, a federal court judge in California approved a settlement agreement whereby ride-sharing company Lyft agreed to pay $27 million to approximately 95,000 California drivers who alleged they were misclassified as independent contractors.

DOJ Appeals Injunction of President's New Executive Order Banning Nationals from Certain Countries

Littler Mendelson, P.C. • March 21, 2017
The U.S. Department of Justice (DOJ) has appealed one of the two federal court injunctions issued in response to President Trump's revised travel ban executive order. This executive order, Protecting the Nation from Foreign Terrorist Entry into the United States (the “Order”), was to take effect on March 16, 2017. The implications of the Order are described here.

Trans-Competence in Healthcare: Emerging Realities for LGBTQ Patients

Littler Mendelson, P.C. • March 21, 2017
Cindy-Ann Thomas, Littler Principal and Co-chair of the firm’s EEO and Diversity Practice Group, and Dr. Thomas Robertson, Chief Psychologist at Jackson Behavioral Health Hospital, discuss how the transgender patient population in healthcare is one of the most highly victimized groups.

Companies May Soon Have a New Defense Against Cyber-Attacks

Jackson Lewis P.C. • March 21, 2017
The Active Cyber Defense Certainty Act is a new bill that is gaining positive bipartisan support and significant interest from business communities, lawmakers and academics.

Ninth Circuit Enforces Arbitration Agreement's Class Action Ban, but Only After Severance of PAGA Ban

FordHarrison LLP • March 21, 2017
Executive Summary: A panel of the U.S. Court of Appeals for the Ninth Circuit recently overruled a lower court’s decision refusing to enforce an arbitration agreement, holding that the dispute resolution provision of the agreement was valid and enforceable and any invalid provisions could be severed. See Poublon v. C.H. Robinson Company, (9th Cir. Feb. 24, 2017).

Puerto Rico Equal Pay Act Aims to Close Gender Pay Gap

Ogletree Deakins • March 21, 2017
On March 8, 2017, Puerto Rico continued the overhaul of its employment laws by enacting, with immediate effect, Act No. 16, known as the “Puerto Rico Equal Pay Act.” The act is not only similar to the federal Equal Pay Act of 1963, it also requires that Puerto Rico courts interpret the act in accordance with its federal counterpart and related federal regulations. Some of the key provisions of the act are summarized below.

It’s Getting Hot in Here! – Employers React with Concern and Confusion to Cal/OSHA Draft Indoor Heat Illness Standard

Fisher Phillips • March 21, 2017
For the past 12 years, California has maintained a Cal/OSHA standard designed to minimize heat illness in outdoor places of employment. However, legislation enacted last year (SB 1167) now requires Cal/OSHA to develop a heat illness standard applicable to indoor places of employment.

Virginia Supreme Court Denies Expansion of Public Policy Exception for Wrongful Termination Claims

Littler Mendelson, P.C. • March 21, 2017
The Supreme Court of Virginia, in Francis v. National Accrediting Commission of Career Arts & Sciences, Inc., No. 160267 (Feb. 23, 2017), reaffirmed that the public policy exception to Virginia’s employment at-will doctrine is a narrow one. In Francis, the court held that to state a valid claim of wrongful termination based on public policy, an employee must allege either that the termination itself violated the public policy stated in the relevant statute, or that the employer prevented the employee from exercising statutory rights.
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