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Department of Transportation Adds Four New Drugs to Testing Panel

FordHarrison LLP • November 21, 2017
Executive Summary: On November 13, 2017, the Department of Transportation (DOT) announced that it is amending its drug-testing program to require testing for synthetic opioids. The new DOT regulations now harmonize with the Department of Health and Human Services (HHS) Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine (HHS Mandatory Guidelines), published January 23, 2017.

How Do Employers Calculate FMLA Leave Around the Holidays?

Franczek Radelet P.C • November 21, 2017
It’s that time of year — my kids are already making changes to the fourth draft of their Christmas wish list, holiday music has been playing on my local radio station for four weeks now, and I’m just about ready to claim the couch where I will spend most of Thanksgiving week in my PJs watching football and eating leftover turkey!

Serial Plaintiffs’ Lawyer Commences Latest Round of Hotel Litigation: How Can Hotels Protect Themselves?

Ogletree Deakins • November 21, 2017
Just as one flood of lawsuits against Arizona businesses finally dries up, another downpour begins. Peter Strojnik of Phoenix, the same attorney who filed more than 1,100 lawsuits that drew the attention of the Arizona attorney general, has filed approximately 60 new lawsuits under the Americans with Disabilities Act (ADA) against motels and places of lodging in the last three months in federal court in Arizona. Fernando Gastelum, an Arizona resident with a prosthetic leg who uses a wheelchair, is the plaintiff in each of these cases. In each suit, Gastelum claims that he visited the hotel or motel’s website to determine if the property provides the accessible features necessary for him to be able to stay there. He claims that the websites failed to disclose sufficient information about their accessibility and that, upon visiting each hotel or motel, he discovered barriers to access, including a lack of accessible parking spaces, steep ramps, stairs with open risers, and other alleged ADA violations. He seeks orders requiring the hotels and motels to remove the alleged access barriers and revise their websites, and demands damages, including punitive damages and attorneys’ fees.

MeToo: Revisiting Policies in a Trending Workplace

Ogletree Deakins • November 21, 2017
From Twitter hashtags to news media talking points, #MeToo has come to powerfully symbolize what many have termed a “watershed moment” for modern American culture on the issues of sexual harassment and sex discrimination. And it’s easy to see why: It is estimated that #MeToo has been retweeted almost 2 million times across 85 countries. It appears that the movement is picking up steam, with women (and men) of all backgrounds and all professions sharing their stories of abuse and harassment.

Restaurant Supply Driver’s Federal FLSA Claims Shown the Exit Ramp on MSJ Ruling

Jackson Lewis P.C. • November 21, 2017
Finding not a “scintilla” of evidence to support claims of minimum wage violations, a New York federal district court in Yu Sen Chen et al v. MG Wholesale Distribution Inc. et al, 16-cv-04439 (E.D.N.Y.) dismissed a proposed collective action (and refused to exercise supplemental jurisdiction of the corresponding state law claims). In doing so, the district court relied on simple arithmetic and the plaintiff’s own admissions.

Timing Is Everything: FMLA Claim Survives Summary Judgment Where Employer Began Auditing Employee’s Records The Day After FMLA Leave Request

Jackson Lewis P.C. • November 21, 2017
Employees requesting, currently taking, or just returning from leave under the Family and Medical Leave Act (“FMLA”) can be terminated for legitimate reasons that are unrelated to their FMLA leave. This point is exemplified by Jennings v. Univ. of N.C., N.C. Ct. App., Case No. COA16-1031 (July 5, 2017), which was the subject of a prior post on this Blog. In Jennings, the North Carolina Court of Appeals ruled that an employer did not violate the FMLA by proceeding with a disciplinary hearing and termination of an employee because of allegations of misconduct that arose prior to her FMLA leave.

Supervisor Training: Answers to Your Most Pressing Questions

XpertHR • November 21, 2017
Having clear employment policies is crucial for employers, but those policies are often only as good as the supervisors entrusted with carrying them out. Robin Shea, a partner at the national law firm Constangy, Smith, Brooks & Prophete, and author of the firm’s award-winning Employment & Labor Insider blog, speaks frequently on training issues, and offers her expertise in XpertHR’s webinar, Supervisor Training – Your ‘First Line’ of Defense. Here are a few of Shea’s insights reformulated in a Q&A

Overtime Ruling Turns on Weight of Drivers' Vehicles

XpertHR • November 21, 2017
Because they spent some of their time driving small vehicles weighing 10,000 pounds or less each workweek, delivery drivers for a Baltimore-based bakery chain were owed overtime under the Fair Labor Standards Act (FLSA), a federal appellate court has ruled.

OSHA Further Delays Deadline Regarding Crane Operator Certification to 2018

Goldberg Segalla LLP • November 20, 2017
On November 9, 2017, OSHA published a Final Rule further extending by one year the employer duty to ensure the competency of crane operators involved in construction work. Previously, this duty was scheduled to terminate on November 10, 2017, but is now extended to November 10, 2018. OSHA is also further extending the deadline for crane operator certification for one year to November 10, 2018.

Elder Abuse: Are Granny Cams a Solution, a Compliance Burden, or Both?

Jackson Lewis P.C. • November 20, 2017
In Minnesota, 97% of the 25,226 allegations of elder abuse (neglect, physical abuse, unexplained serious injuries and thefts) in state-licensed senior facilities in 2016 were never investigated.

Who’s Really Driving The Gig Train: the Young or the More “Mature”? How About Both?

Fisher Phillips • November 20, 2017
I couldn’t help but be struck by two recent headlines which appeared to stand diametrically opposed in answering the question of who is driving the gig economy.

Salary-Threshold Autopilot Still Possible

Fisher Phillips • November 20, 2017
A BloombergBNA report suggests that the U.S. Department of Labor is seriously considering retaining the Obama Administration's procedure (or something like it) for automatic "updates" to the compensation thresholds specified in the federal Fair Labor Standards Act's Section 13(a)(1) exemption regulations. Apparently, U.S. Labor Secretary Acosta recently revealed this in closed-door remarks to the U.S. Chamber of Commerce.

US Employers Hiring In Canada – The Basics Part I: Good Bye Employment At-Will; Hello Entitlements

Fisher Phillips • November 20, 2017
Fisher Phillips’ International Employment Practice Group routinely counsels employers that are planning to move into the Canadian employment market (or have done so already without the requisite due diligence). In these situations, we often find that even seasoned US HR Professionals are taken aback by the stark differences between the employment law regimes in the US and Canada. Accordingly, in this blog series, we will address at a high level some of the basic differences that employers should be aware of before hiring employees in Canada.

Salary History Bans Continue as Big 2017 Employment Trend

XpertHR • November 20, 2017
Employers may want to think twice before asking job applicants about their current or past salaries. Nine jurisdictions have passed laws banning or restricting such questions, most of them doing so in 2017. And the trend appears certain to continue in the coming year.

Minimizing Employers’ Holiday Party Risks: Don’t Be Left Out in the Cold

XpertHR • November 20, 2017
With holiday season almost here, workplace holiday parties are also coming soon. These parties are often a good idea to encourage camaraderie among employees and managers and thank your workforce for a job well done. However, a festive and happy celebration can carry a great deal of risk for employers as well. From claims of religious discrimination to sexual harassment to risks of drunk driving, if an employer is not careful things can turn sour in a hurry.

Transportation Department Expands Drug Testing Panel to Include Certain ‘Semi-Synthetic’ Opioids

Jackson Lewis P.C. • November 17, 2017
Employers regulated by the U.S. Department of Transportation (DOT) should revise their drug and alcohol testing policies to conform to new DOT regulations that added four “semi-synthetic” opioid drugs to the DOT drug testing panel. The new regulations go into effect on January 1, 2018.

Lessons To Be Learned From The Breach Of Nearly 500,000 Individual Health Records Reported In September 2017

Jackson Lewis P.C. • November 17, 2017
A recent report indicates that nearly 500,000 individual health records were breached in September 2017. This figure is taken from the 39 healthcare data breaches involving more than 500 records that were reported to the Department of Health and Human Services’ Office for Civil Rights in September 2017. Healthcare providers suffered the most breaches with 27 reported incidents, followed by health plans with 10 breaches, and 2 breaches reported by business associates of covered entities. This demonstrates the need for security measures by both HIPAA Covered Entities and Business Associates.

eLABORate: Fifth Circuit Says Employer Not Liable for Pre-Shift Wait Time Under FLSA

Phelps Dunbar LLP • November 17, 2017
In a decision rendered on November 9, 2017, the United States Court of Appeals for the Fifth Circuit affirmed a district court’s ruling that an employer was not liable under the Fair Labor Standards Act (“FLSA”) for failing to compensate its employees for pre-shift wait time.

Agency Heads Discuss Changes in Regulatory Direction During Federalist Society Panel

Littler Mendelson, P.C. • November 17, 2017
The current leaders of the Department of Labor, Equal Employment Opportunity Commission, and National Labor Relations Board addressed transitions and regulatory plans at their respective agencies at a November 16 forum. The Federalist Society, a conservative think-tank, sponsored the panel discussion during which the speakers advocated a more common-sense approach to rulemaking, and supported the Trump administration's efforts to rescind or scale back some of the prior administration's more onerous rules.

Labor Secretary Discusses DOL Priorities During House Committee Hearing

Littler Mendelson, P.C. • November 17, 2017
Labor Secretary Alexander Acosta fielded a range of questions on the DOL's priorities during a November 15 hearing before the House Committee on Education and the Workforce. Although members of the Committee inquired about past, current, and future rulemaking and other Department initiatives, the limited duration of Wednesday's hearing allowed Secretary Acosta to deliver only brief responses. The hearing did, however, provide some insight into the DOL's stance on health care, OSHA enforcement, overtime rulemaking authority, apprenticeship, and other workplace concerns.

Beltway Buzz, November 17, 2017

Ogletree Deakins • November 17, 2017
Tax Bill or Health Bill? It’s Two Bills in One! Caught in a legislative black hole, the Affordable Care Act (ACA) cannot escape efforts to eradicate it—or at least large chunks of it. Late Thursday evening, the Senate Finance Committee passed by a 14 to 12 margin its current tax reform bill, which included—to much surprise—a controversial provision that would repeal the ACA’s individual mandate. Although the Trump administration had been pushing to eliminate the individual mandate for over two weeks, the Senate had until now feared that the politically charged measure might jeopardize passage of the entire tax bill. Supporters of the Senate bill maintain that the more than $300 billion in estimated savings over 10 years will be used to enhance tax cuts to the middle class, while critics charge that the additional savings will instead be funneled into greater tax breaks for the wealthy. Critics also fear that repealing the individual mandate might cause health insurance premiums to rise sharply and overall coverage to drop as younger and healthier Americans decline to enroll. Interestingly, despite early contrary rumors, the bipartisan Alexander-Murray bill, which would retain federal cost-sharing reduction payments to insurers for two years, did not find its way into the current draft of the Senate bill. The full Senate is expected to vote on the bill sometime during the week after Thanksgiving.

The New OFCCP Director: Trump Administration to Tap Florida City Attorney

Ogletree Deakins • November 17, 2017
We understand that the Trump administration has chosen Craig E. Leen to serve as senior adviser to U.S. Secretary of Labor Alexander Acosta. Leen, who until recently was the city attorney for Coral Gables, Florida, is anticipated to be the next director of the Office of Federal Contract Compliance Programs (OFCCP).

Harvey Weinstein and Sexual Harassment Law: “Me Too”

Ogletree Deakins • November 17, 2017
The reports of women who went on the record to accuse Hollywood businessman Harvey Weinstein of sexual harassment, sexual assault, and other abuses, evoked the following recent Twitter message by Alyssa Milano: “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.” This call to action led thousands to step forward and tell their stories as the #MeToo movement—a campaign started approximately 10 years ago by activist Tarana Burke—gathered momentum and focused the public’s attention on the issue of sexual harassment and sex discrimination.

Preparing for an Increase in I-9 Worksite Enforcement

Ogletree Deakins • November 17, 2017
After reviewing data related to time spent by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) unit on worksite enforcement, Acting Immigration and Customs Enforcement Director Thomas Homan issued a directive “to increase that [level of enforcement] by four to five times.” A review of Homeland Security Investigations (HSI statistics from the prior administration reveals that the number of employer audits reached a peak in 2013 with 3,127 nationwide, but by 2016, audits had dipped to 1,279 audits (down 59 percent). The ICE directive comes just after an announcement of the largest fine on the I-9 enforcement record, as well as the White House release of President Trump’s interior enforcement principles which include making participation in the now-voluntary E-Verify program mandatory.

Congress Considering Federal Cyber Breach Laws

Goldberg Segalla LLP • November 15, 2017
Huge cybersecurity breaches at major retailers caught the attention of the public and have made headlines. Now, more recent breach at one of the major credit reporting agencies has the attention of Congress. 48 states and the District of Columbia already have some form of legislation governing security breaches. These statutes typically begin by laying out who is subject to the requirements, such as businesses and information brokers, and what information is considered protected “personal information.” The laws then outline what constitutes a breach, the requirements for providing notice, and exemptions to the law. What’s next, Congress?

$1 Jury Verdict Yields 300k in Attorneys Fees to Plaintiff’s Counsel

Jackson Lewis P.C. • November 15, 2017
In a case alleging sexual harassment by a researcher against a research assistant, the trial court ordered more than 300k in attorneys’ fees after the jury awarded a mere $1 in damages to the plaintiff. Jenkins v. The University of Minnesota et al., No. 13-CV-1548 (D. Minn. Oct. 13, 2017). The court awarded attorneys’ fees because it found that nonmonetary considerations significantly affected the case.

2018 Minimum Wage Rate Increases: Are You Ready?

Jackson Lewis P.C. • November 15, 2017
The federal minimum wage has remained stagnant at $7.25 an hour since 2009. In the absence of an increase to the federal minimum wage, an increasing number of states, cities, and other municipalities have enacted statutes providing for minimum wage rates in excess of (and, in some cases, more than twice as high as) the federal rate.

Can Gig Businesses Offer Benefits To Their Workers? Recent Developments May Shed Light On Answer

Fisher Phillips • November 15, 2017
There are obvious “benefits” to participating in the gig economy: Gig companies get to use as little or as much labor as they need. Gig workers are able to work at their chosen capacity. And customers get new products and services. But there are other “benefits” that are receiving more attention of late: “employee benefits.”

Ninth Circuit Approves Travel Ban 3.0, In Part

Jackson Lewis P.C. • November 15, 2017
The Ninth Circuit Court of Appeals has ruled to allow President Donald Trump’s latest travel ban proclamation to go into effect – at least in part.

What Am I Doing Wrong?? Common FMLA Mistakes (November 15, 2017)

Jackson Lewis P.C. • November 15, 2017
“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eleventh in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

5 Ways to Lose the Employment At-Will Relationship

XpertHR • November 15, 2017
Absent a written agreement stating otherwise, with the exception of Montana, employment relationships are presumed to be at-will. In other words, an employer can terminate an employee at any time for any reason, or for no reason, so long as it’s not for a discriminatory or other illegal reason. Likewise, an employee is free to leave a job at any time.

SCOTUS Will Not Review CFAA Password Sharing Case

Jackson Lewis P.C. • November 14, 2017
The United State Supreme Court recently denied certiorari in Nosal v. United States, 16-1344, declining to weigh in on the scope of unauthorized access under the Computer Fraud and Abuse Act (“CFAA”). The Ninth Circuit held in Nosal that David Nosal violated the CFAA by using his past assistant’s password to access his former employer’s computer system after his access credentials were expressly revoked. (For Nosal case history see our past blog posts here and here.)

Ready or Not, Here It Comes! 2018 Brings New Labor & Employment Laws, Primarily at the State Level

Littler Mendelson, P.C. • November 14, 2017
As we prepare to turn the calendar to 2018, employers look ahead to the next wave of labor and employment regulations. On January 1, 2018, and throughout the coming year, employers across the nation will confront a host of new or amended federal, state, and/or local laws. This article summarizes impending obligations that may flow from these law changes in the chart below and also highlights some anticipated activity.

Is There Automatic Civil Liability For A Data Breach?

Fisher Phillips • November 14, 2017
No! It is a common misconception among the general public that someone always has to pay when there is a data breach. It is understandable that individuals affected by a data breach will be upset, distraught, and even angry. In light of recent large-scale data breaches, it is safe to say we have all been there, with our personal information that we entrusted to particular companies or employers now out there in the hands of cyber thieves.

Are "Draws" Against Commissions Unlawful "Kick-Backs"?

Fisher Phillips • November 14, 2017
Media reports have mistakenly suggested that a recent decision by the Sixth Circuit U.S. Court of Appeals (Kentucky, Michigan, Ohio, and Tennessee) found the federal Fair Labor Standards Act to prohibit recouping a draw or advance from future earnings. However, a closer reading of the opinion proves that you can't judge a ruling by its headings.

The Practical NLRB Advisor: Fall 2017

Ogletree Deakins • November 14, 2017
Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the fall 2017 issue of the Practical NLRB Advisor. This issue considers how the confirmation of management-side attorney Peter B. Robb as the new National Labor Relations Board (NLRB) General Counsel will affect labor law policy. With the Senate’s confirmation of Robb to replace outgoing General Counsel Richard F. Griffin, Jr., the agency appears headed for significant change.

BREAKING NEWS: Craig Leen Anticipated To Be New OFCCP Director

Jackson Lewis P.C. • November 14, 2017
In an unexpected, but much awaited move, it is anticipated Craig Leen will be named as the new head of the Office of Federal Contract Compliance Programs (“OFCCP”). While the Department of Labor has not formally confirmed or commented on this development, Leen’s appointment would come more than a year after Patricia Shiu departed the position in November 2016. Since that time, Tom Dowd has held the position of interim Director at OFCCP.

Bill to Define "Joint Employer" Passes House

XpertHR • November 14, 2017
Legislation that would limit the circumstances under which an employer is considered a "joint employer" under federal employment laws has passed the US House of Representatives.

IRS Will Soon Issue Notices of 2015 ACA Penalties

XpertHR • November 14, 2017
Large employers may soon receive a notice from the IRS if they are liable for an employer shared responsibility payment for calendar year 2015 under the Affordable Care Act (ACA). The IRS updated its guidance on ACA employer shared responsibility provisions on November 9, announcing that it plans to issue penalty notices to Applicable Large Employers (ALEs) deemed out of compliance.

I Wonder How Many Other Hollywood Personalities Wish that they had Promised their Boss a Missouri Whooping?

Fisher Phillips • November 13, 2017
I am not encouraging workplace violence, even for individuals who may deserve a good old fashioned whooping. However, it is worth noting that one of the few Hollywood celebrities to have largely survived the onslaught of harassment claims with some dignity is Brad Pitt. As everyone knows, while dating a young Gwyneth Paltrow, Brad Pitt reportedly confronted Harvey Weinstein, told him to stop harassing Miss Paltrow, and threatened a “Missouri Whooping.” Given the story, I tend to suspect that he actually promised a “Missouri Ass Whipping” (pardon my language).