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Iowa Waives Appeal of $2.2 million Verdict In Favor of Settlement

Jackson Lewis P.C. • October 19, 2017
On August 24, 2017 we reported that former communications director for the Iowa Senate Republican Caucus, Kristen Anderson, was awarded $2.2 million in damages by a jury that found Anderson had been fired in retaliation for complaining about sexual harassment and a hostile work environment.

Top Five Labor Law Developments for September 2017

Jackson Lewis P.C. • October 19, 2017
An employer violated the National Labor Relations Act when it discharged an employee who protested an unlawful confidentiality policy, even though the employee protested without the involvement of any coworkers, the U.S. Court of Appeals for the Second Circuit has held.

Are Your Compliance Training Efforts Keeping Pace With Industry Standards?

Littler Mendelson, P.C. • October 19, 2017
As 2017 winds down, and the window closes to complete any mandatory training, Kevin O’Neill, Senior Director of Littler Learning Group, chats with Dawn McKenney-Maxwell of Littler’s Knowledge Management team about employer training initiatives. Kevin identifies hot topics – social media and bystander training, for example – and reviews employer anti-harassment training duties, particularly in California. Kevin discusses how training approaches continue to evolve and how employers can embrace new trends and technology to make employee training more effective.

Getting Ahead of the Curve: How the Use of AI in HR Benefits Employers and Candidates

Littler Mendelson, P.C. • October 19, 2017
Dr. Zev Eigen, Global Director of Data Analytics with Littler, hosts Athena Karp, CEO and founder of HiredScore, for this next installment of the Big Data Initiative Podcast series.

When You Don't Train Your Managers About the FMLA, You're Begging for This Kind of Smackdown

Franczek Radelet P.C • October 19, 2017
When a manager learns that one of his employees is in the hospital for several days, that’s almost always enough information for the employer to have an inkling that the employee may need FMLA leave.

Are You Doing Enough to Protect Your Company's Secrets?

Fisher Phillips • October 19, 2017
A decade ago, I litigated a trade secret/unfair competition dispute between two large plastics manufacturers. The Plaintiff was based in southwest Florida, the Defendant in southern Alabama. The factual dispute is interesting, though not necessarily particularly pertinent to the subject I want to address in this post.

The Future is Freelance

Fisher Phillips • October 19, 2017
Yesterday, Upwork and the Freelancers Union published the results of Freelancing in America: 2017, a comprehensive annual measure of the U.S. independent workforce. The report’s findings are wide-ranging, from the number of people who freelance (57.3 million), to the annual contribution of freelance earnings to the economy ($1.4 trillion), to the generation with the highest percentage of freelance workers (no surprise: Millennials at 47%).

What Behavioral Psychology Has to Do With Union Avoidance: Reflections From a Labor Lawyer

Ogletree Deakins • October 19, 2017
As a traditional labor lawyer, I spend a great deal of time traveling the country to assist clients, and I spend a lot of that time in airports and on airplanes reading. On a recent trip, I read The Undoing Project: A Friendship That Changed Our Minds by Michael Lewis, which discusses the research two psychologists conducted on the psychology of decision-making. The research, which concluded that people often err when making decisions despite access to information that should help them, got me thinking about how employees act in the face of union campaigns.

Is the New Moral Exemption From ACA Contraceptive Coverage a Game Changer?

Ogletree Deakins • October 19, 2017
Any privately held, for-profit company could potentially be exempt from the Affordable Care Act’s (ACA) requirement to provide comprehensive contraceptive coverage without cost-sharing based on the company’s “sincerely held moral convictions,” under interim final regulations published in the Federal Register on October 13, 2017.

Intern or Employee? When “Take Your Children to Work” Day Backfires

Jackson Lewis P.C. • October 19, 2017
In late April each year, tens of millions of employees and millions of employers participate in Take Your Sons and Daughters to Work Day

Harvey Weinstein and Top Sexual Harassment Mistakes Employers Make

XpertHR • October 19, 2017
As the Harvey Weinstein scandal continues to unfold, it is a virtual playbook on mistakes employers can make when it comes to sexual harassment in the workplace.

Third Travel Ban Blocked by Court

Jackson Lewis P.C. • October 19, 2017
On the eve of its taking effect, President Donald Trump’s third attempt at a travel ban has been blocked by the District Court in Hawaii.

Acosta and Lipnic Share DOL and EEOC Priorities

XpertHR • October 19, 2017
WASHINGTON, DC - The priority for the US Department of Labor (DOL) is "jobs, jobs and even more jobs," Secretary of Labor Alexander Acosta told an assembly of in-house counsel today. Also addressing the group, the acting chair of the Equal Employment Opportunity Commission (EEOC), Commissioner Victoria Lipnic, said the EEOC needs to change course on pursuing systemic lawsuits and touted the agency's success in reducing its backlog of charges.

2018 Social Security Taxable Wage Base Inches Up, Benefit COLAs Up More

XpertHR • October 19, 2017
The Social Security Administration has issued inflation-adjusted figures for 2018, including the Social Security taxable wage base, the earnings tests for retirees who return to work, and the Social Security benefits quarter-of-coverage requirement and cost of living adjustment (COLA). Employers should update their payroll systems with these new figures for accurate 2018 withholding.

Recusal: Use it or Lose it

Goldberg Segalla LLP • October 17, 2017
Attorneys and their clients must make strategic decisions during litigation whether to take certain actions that are available to them. Should you move for dismissal or answer the complaint? Should you seek more specific answers to written discovery, or just save your questions for a deposition? These are common questions that do not necessarily have a “right” answer.

U.S. Department of Justice Rescinds Policy Protecting Transgender Employees

Franczek Radelet P.C • October 17, 2017
On October 4, 2017, the United States Department of Justice, through Attorney General Jeff Sessions, issued a memorandum rescinding an Obama-era policy protecting transgender employees from employment discrimination pursuant to Title VII of the Civil Rights Act of 1964.

Rule 68 Offers of Judgment

Nexsen Pruet • October 17, 2017
If there is any occasion in civil litigation that calls for caution by counsel, it is the drafting of a Rule 68 offer of judgment, so warns the Fourth Circuit. Consistent with the general rule of contract construction, responsibility for clarity and precision in a Rule 68 offer is that of the offeror. That concept, along with a few twists and turns unique to a SCUTPA claim, was recently visited by our District Court in Bradley Johnson, as a general guardian, for and on behalf of S.J., a minor and individually on behalf of S.J. v. Hyatt Hotels Corporation, et al, 2017 WL 4473469 (October 6, 2017).

The Holiday Hiring Frenzy: 10 Tips That Will Keep You Off the Naughty List

Ogletree Deakins • October 17, 2017
It’s that time of year again—many employers, especially retailers and hospitality employers, are hiring seasonal workers for the holiday shopping season. Despite the challenge of adding so many employees in a short period of time, human resources departments should be cautious of taking shortcuts with recruiting, onboarding, and training. Below are 10 tips to keep in mind during this hectic time of year.

Ogletree Deakins International Video Series: At-Will Employment

Ogletree Deakins • October 17, 2017
In the final chapter of our four-part video series, Bonnie Puckett, of counsel in our International Practice Group, and Jean Kim, an associate in our International Practice Group, discuss the absence of at-will employment outside the U.S. Tune in to our five-minute video below, in which they cover considerations for U.S.-based in-house counsel who need to know how to structure—and dissolve—employment relationships outside the U.S.

Update: The Diversity Lottery Will Restart Following Resolution of Technical Issue

Jackson Lewis P.C. • October 17, 2017
We previously reported on the Department of State’s acceptance of applications for the diversity immigrant lottery. Since then, the DOS has announced on the Diversity Lottery website:

New Mexico Court Rules Employee Is Entitled To Nationwide Discovery in FMLA Case

Jackson Lewis P.C. • October 17, 2017
On October 10, 2017, Judge Ritter issued the Memorandum Opinion and Order which granted a former employee’s Motion to Compel and held that the former employee was entitled to information from the company’s nationwide offices relating to other employees fired under the company’s 100% healed policy and other FMLA or ADA complaints.

DHS Uses the Power of Policy to Alter Immigration Without Legislation

Ogletree Deakins • October 16, 2017
Efforts to reform our nation’s immigration system through legislation are frequently contentious and can become embroiled in larger legislative debates that make the passage of a bill into law a complicated process and, often, an unlikely prospect.

Compensation Policies Under Scrutiny: Federal Court Conditionally Certifies Class of Female Faculty Physicians in EPA Case

Ogletree Deakins • October 16, 2017
On September 28, 2017, the U.S. District Court for the Central District of Illinois granted conditional collective action certification in Ahad v. Board of Trustees of Southern Illinois University, a case under the Equal Pay Act (EPA) brought on behalf of female faculty physician employees of the Southern Illinois University School of Medicine and SIU Physicians & Surgeons, Inc.

Beltway Buzz, October 13, 2017

Ogletree Deakins • October 15, 2017
Trump Signs New Executive Order Threatening ACA. Following last month’s senatorial defeat on full repeal-and-replace—after which Congress vowed to move on to tax reform and other lower hanging fruit—the Trump administration is trying a new tactic by issuing a comprehensive executive order (EO) on October 12, 2017. Though administration officials intend for the new EO to be the “first steps to providing millions of Americans with Obamacare relief,” critics fear the order might cause the present health care marketplace to implode like the Washington Nationals in the playoffs, resulting in widespread loss of quality coverage . Although details are few at this time, the EO expands the availability of three already existing alternatives to ACA-covered health plans:

The Potential Perils Of "Managing Through The Payroll"

Fisher Phillips • October 15, 2017
Management's already-daunting, time-consuming responsibilities are further complicated by the need to motivate employees to do desirable things and to deter them from doing unwanted things. It is therefore understandable that employers might look for indirect, "set it and forget it" ways to accomplish this that do not involve the actual, day-by-day supervision of a worker's conduct.

Trump Issues Executive Orders Aimed at Rolling Back Affordable Care Act

XpertHR • October 15, 2017
President Trump has issued two executive orders intended to weaken the regulatory structure supporting the Affordable Care Act (ACA) after efforts to repeal the health care law failed in Congress. The first order asks the US Department of Labor (DOL) to propose rules to allow more employers to participate in association health plans. The other order halts payment of subsidies to healthcare insurers.

Turning the Ship: Labor & Employment Developments Thus Far in the Trump Administration

Littler Mendelson, P.C. • October 13, 2017
In this podcast, WPI Co-Chairs Ilyse Schuman and Michael Lotito review the status of several labor and employment issues, as the Trump Administration closes out its first nine months. Ilyse and Michael discuss pending nominations to fill numerous key positions within the Department of Labor, EEOC, and National Labor Relations Board. They address anticipated changes to the EEO-1 report and the overtime rule, both of which are under reconsideration by the new leadership. Join Ilyse and Michael as they explore regulatory and legislative developments at the federal and state levels, including potential clarification on what it means to be a joint employer.

President Trump Issues Executive Order to Reshape Health Insurance Market

Littler Mendelson, P.C. • October 13, 2017
After failing to achieve a legislative solution to "repeal and replace" the Patient Protection and Affordable Care Act (ACA), President Trump issued an executive order (EO) on October 12, 2017, designed to promote “healthcare choice and competition” by modifying certain healthcare insurance regulations. In the absence of congressional action, according to the White House press release, this EO takes “the first steps to expand choices and alternatives to Obamacare plans and increase competition to bring down costs for consumers.” The cornerstone of this White House effort is the promotion of Association Health Plans (AHPs) allowing employers to join together to purchase insurance across state lines.

Massachusetts Federal Court Decision Highlights the Importance of FMLA Training and Compliance

Ogletree Deakins • October 13, 2017
Navigating leave issues can be difficult: There are several statutes that provide employees with different, yet sometimes overlapping rights, and every situation is unique. Employers must ensure that members of management and those responsible for addressing leave situations are aware of the applicable legal requirements and trained on them.

The ACA Is Alive and Well: Updates to Mandated Preventive Health Care Services Issued for 2018

Ogletree Deakins • October 13, 2017
The Patient Protection and Affordable Care Act of 2010 (ACA) revolutionized the U.S. healthcare system. Among the many major changes the ACA introduced was mandatory first coverage of preventive care services required for most private health plans. Although most plan sponsors are well-aware of the ACA’s requirements for first dollar coverage on preventive care benefits, it may come as a surprise that the list of preventive care services is subject to annual updates, and there are several new requirements for 2018.

Step Right Up: Tentative Ruling Shows Amusement Park Beats Back Bulk of Class Bid

Jackson Lewis P.C. • October 13, 2017
In a mixed ruling, a California state court judge in Villegas v. Six Flags Entertainment Corp., Case No. BC505344, issued a decision last week denying certification of eight subclasses of amusement park workers, but indicating she would consider certification of several others pending further briefing.

Exemption to ACA Contraceptive Mandate Extended to For-Profit Entities and Individuals

Jackson Lewis P.C. • October 13, 2017
Under the ACA, employers must provide plans that cover birth control and other preventative health services with no out-of-pocket costs. Certain religious employers with religious objections to providing contraceptive services have been exempt from the requirement. (Accommodations have also been provided to non-profit religious organizations objecting to the rule and expanded to closely held for-profit entities objecting to the mandate on religious grounds, see

Wage and Hour Dilemmas for Construction Industry Employers

Littler Mendelson, P.C. • October 12, 2017
Littler’s Russ McEwan and Lindsay Sorin discuss some of the most common wage and hour issues that our construction industry clients face, and offers practical solutions to minimize risk.

White House Releases Trump Administration Immigration Policy Priorities

Littler Mendelson, P.C. • October 12, 2017
On October 8, 2017, the White House released a list of immigration priorities addressing border security, interior enforcement, and a merit-based immigration system. The priority list calls for the hiring of 10,000 ICE agents, 300 federal prosecutors, 370 immigration judges and 1,000 ICE attorneys. The Department of Homeland Security would be authorized to raise and collect fees from visa services and border crossings to fund border security and enforcement activities.

The Age Discrimination in Employment Act: Looking Back at the Last Fifty Years

Nexsen Pruet • October 12, 2017
This year marks the 50th anniversary of the Age Discrimination in Employment Act (ADEA),[1] which was signed into law by President Lyndon B. Johnson in 1967. Congress created the legislation in an effort to promote the employment of older persons based on their ability rather than age and to prohibit arbitrary age discrimination in employment.[2] During the past fifty years, the ADEA has been amended several times, including in 1978, 1986, 1990 and 1996,[3] thereby expanding the scope of the law and the protection afforded older workers. While the overall effect of the amendments has been to expand the law, court decisions have tightened the requirements for proving a violation, and, according to the Equal Employment Opportunity Commission (EEOC), outdated assumptions about age and work persist as stereotypes and barriers to the employment of older workers.[4] This article looks back at some of the significant changes to the ADEA and legal decisions interpreting the law since its enactment.

Recent Cases Shed Light on Retirement Plan Excessive Fee Litigation

Nexsen Pruet • October 12, 2017
As we approach the end of the year, 2017 is turning out to be significant in the ever-evolving world of litigation over 401(k) plan fees. Since 2006, plaintiffs’ firms have brought hundreds of lawsuits across the country on behalf of employees alleging excessive plan fees and breaches of fiduciary duties to maintain proper investments. While these lawsuits initially targeted larger, multi-billion dollar plans, these cases have expanded downward in recent years. Decisions in two recent cases will have significant effect on the retirement plan fee landscape.

Top 10 OSHA Citations for 2017

Nexsen Pruet • October 12, 2017
The Occupational Safety and Health Administration has announced the Top 10 most frequently cited alleged violations for fiscal year 2017, which ended September 30. The list changes little from year to year, but this year violation number nine, “Fall protection – training requirements,” is new. The top five violations remained identical to the list for FY 2016.

How to Be Ready When the EEOC Charges In, Part II: 5 Harassment Prevention Principles to Highlight in a Response

Ogletree Deakins • October 12, 2017
In part one, of this blog series on responding to charges brought by the Equal Employment Opportunity Commission (EEOC), I described some situations that pose an increased risk of a systemic harassment investigation by the EEOC in response to an individual harassment charge. Usually, when responding to the EEOC, employers can provide a precise and limited response that includes only the most essential supporting documents. But when the risk of a systemic investigation arises, an employer’s response may need to be more comprehensive to show that the individual’s charge lacks merit and that the company has an effective harassment prevention program in place.

How HR Challenges Will Change and Transform from 2017 to 2018

XpertHR • October 12, 2017
As the new calendar year draws closer, employers are bound to face challenges and obstacles when it comes to complying with new federal, state and local laws, maintaining their workplaces and managing their workers.

Trump Administration Issues “Principles” in Exchange for Relief for DACA Recipients

Jackson Lewis P.C. • October 12, 2017
Deferred action for DACA recipients will start to expire in March 2018 and there is still no certainty about what will happen to them. Amidst legal challenges to the rescission of DACA, the introduction of a number of statutory fixes, and a supposed “deal” between President Trump and Democratic leaders to protect the “Dreamers,” there is now a new twist. The Trump Administration has announced a list of principles to include in any deal for the Dreamers. Those principles, some of which derive from the President’s various Executive Orders, include: